Atlanta & W. P. R. Co v. Creel

• Decision Date: 08 May 1948
• Docket Number: Nos. 31976, 31977.,s. 31976, 31977.
• Citation: 47 S.E.2d 762
• Parties: ATLANTA & W. P. R. CO. v. CREEL et al. SOUTHERN RY. CO. v. SAME.
• Court: Georgia Court of Appeals

47 S.E.2d 762

ATLANTA & W. P. R. CO.

v.CREEL et al.

SOUTHERN RY. CO.

v.SAME.

Nos. 31976, 31977.

Court of Appeals of Georgia, Division No. 1.

May 8, 1948.

Syllabus by the Court.

1. The verdict is supported by the evidence, and the trial judge did not err in overruling the general grounds of the motions for a new trial.

(a) This court, on the general grounds of a motion, will not disturb the verdict of a jury which has the approval of the trial judge where there is any evidence to support the verdict.

2-6. Under the pleadings and evidence in this case the charges of the court to the jury on which error is assigned in the special grounds of the motions for new trial are not error for any reasons assigned.

7. A ground of a motion for new trial is not in proper form for considera tion, unless it is complete within itself, and it is not complete, if, to be intelligible, it is necessary to refer to other parts of the record, including the charge of the court.

8. The trial judge did not err in overruling the amended motions for a new trial.

Error from Superior Court, Fulton County; Bond Almand, Judge.

Action by J. E. Creel against the Atlanta & West Point Railroad Company and the Southern Railway Company for personal injuries sustained while moving a defective gondola car owned by defendant Southern Railway Company. To review the judgment, defendant, Atlanta & West Point Railroad Company, brings error naming both plaintiff and defendant Southern Railway Company as defendants in error, and Southern Railway Company brings error naming Atlanta & West Point Railroad Company and plaintiff as defendants in error.

Judgment affirmed.

J. E. Creel sued the Atlanta and West Point Rail Road Company and the Southern Railway Company in Fulton superior court for damages sustained as a result of personal injuries incurred on December 4, 1945, while engaged in moving a gondola car for the purpose of placing it under a crane operated by the LeRoy Smith Lumber Company, his employer, in order that the car might be unloaded.

In his petition, Creel alleged that the Southern Railway Company was negligent in the following particulars: In furnishing and putting in traffic Southern Car No. 195114 equipped with defective and unworkable brakes, and in failing to exercise ordinary care to see that the car and its brake equipment were in reasonably safe and workable condition. He alleged that the Atlanta and West Point Rail Road Company was negligent as follows: In failing to properly inspect Southern Car No. 195114 so as to ascertain the defective condition of the brakes, and in failing to make the necessary repairs to the brakes as to render them reasonably safe, and in failing to notify the consignee, the LeRoy Smith Lumber Company, of the defective condition of the brakes, and in placing the car, with defective brakes, on the spur track of the lumber company, when it knew that employees of the consignee would move the car to the crane for the purpose of unloading. Both defendants denied all allegations of negligence.

The evidence shows that: The gondola car at the time of the accident was located on a spur track on the premises of the plaintiff's employer, the LeRoy Smith Lumber Company, at Union City, in Fulton County, Georgia, and had been placed there with other cars by the Atlanta and West Point Rail Road Company. This spur track goes downgrade from the main line of the Atlanta and West Point Rail Road Company to that of the Atlantic Coast Line. It was customary for the Atlanta and West Point Rail Road Company to deliver cars to the plaintiff's employer by placing them on the spur track, and when they could not be placed sufficiently near the crane for unloading, they were placed on the spur at a point between the crane and the main line of the Atlanta and West Point Rail Road Company so that when ready for unloading the employees of the LeRoy Smith Lumber Company could release the brakes on the cars and allow them to roll down grade to a point under the crane. The car which plaintiff was attempting to move at the time of the accident was car No. 195114, gondola type, owned by the Southern Railway Company. It had been delivered in Atlanta, fully loaded with heavy timber, by the Southern Railway Company to the Atlanta and West Point Rail Road Company, who in turn had carried the car to Union City and delivered it to the LeRoy Smith Lumber Company by placing it upon the spur track. At the time of the accident the plaintiff was Superintendent of the LeRoy Smith Lumber Company. Securing the aid of a negro employee, he went to move Southern Car No. 195114 so that it could be unloaded. Upon learning that the negro helper was not acquainted with the details of operating the brakes after setting a car in motion, the plaintiff secured a piece of lumber for use as a brake stick, and after releasing the air brakes of the car, mounted it on the down grade and where the hand brake mechanism was located. This mechanism consists of a vertical rod on one end (exterior) of the car, in this case the down grade end, with a wheel at the top end of the rod, and this rod passes through a little metal base at the top of the car downward through a wooden platform about 2¹/₂ feet below the top edge of the car. At the lower end of the rod there is a chain attached, so that when the rod is turned by the wheel at the top, the chain is wrapped around the rod and shortens, causing the brake shoes on each wheel to press against the wheels, and this is what causes the braking of the car. On the rod, about halfway down, there is a cog wheel which engages a ratchet located on the wooden platform. Although some cars have an automatic ratchet, on this particular car it was necessary to "toe the latch" to make it engage the cog wheel and hold the brake rod, when setting the brakes to hold the car, and in order to get a new hold on the brake wheel when necessary. The car was set in motion down grade towards the crane and Creel started operating the brake mechanism, using the brake stick that he had secured, by placing it inside the wheel at the top of the rod, and against the rod. He could hold the brakes tighter by using a brake stick than by using the wheel alone. After the car had traveled about 50 feet Creel realized that the brakes were not holding the car, and he called to his helper to get a piece of lumber to chuck the car, but the negro stumbled and fell and could not come to his aid. The car gained momentum and Creel placed one leg inside the car so as to be able to pull harder on the brake mechanism, but this proved futile, and by this time the car was going so fast he was afraid to jump, and he realized he was not going to be able to stop the car, and fearing injury if the timber shifted, a collision with other cars at the lower end of the spur being inevitable, he pulled his leg from the inside of the car. At no time did he attempt to work the toe latch and as to why he did not use the latch, he testified "I had it just as tight as I could get it. I didn't need to take the brake stick out and get a new hold. I was putting all the pressure I had on it. I didn'tuse the ratchet." He said he knew how to use the ratchet, and always used the ratchet when he stopped a car where he wanted it to stand. At the lower end of the down grade, near the Atlantic Coast Line track, were some other cars, including some empty cars that other employees of the lumber company had let get away earlier on the day of the accident, and the runaway car which Creel was trying to brake ran into these cars. When the collision occurred Creel was on the brake platform at the end of Car No. 195114 and between the two colliding cars. He was holding onto the top rim of the end of the car, and, when the cars hit, the load of timber, which consisted of heavy timber as large as 12 x 12 and 40 feet long, shifted and pinned his left hand to the side of the car, causing the amputation of four fingers of that hand, and Creel was thrown against the other car by the impact, cutting and bruising severely his left thigh, and fracturing his left knee. Visual inspections of the brake mechanism of Southern Car No. 195114 had been made by the Southern Railway Company at the time the car was turned over to the Atlanta and West Point Rail Road Company in Atlanta, and further inspections had been made by that railroad in a similar manner before the car was delivered to the lumber company, and the brakes appeared to be in working order. After the accident, the car was unloaded, and was taken by the Atlanta and West Point Rail Road Company to the main line of that railroad and while empty a test of the hand brake mechanism was made by an experienced brakeman, who was able to lock the wheels of the car by using the hand brakes so that it skidded on the tracks while being pulled by an engine, and an examination of the car revealed no apparent defects in the braking mechanism.

The jury found for the plaintiff against both defendant for $6000.00, and judgment against the defendants was rendered accordingly. The case is here on exceptions to the overruling of motions for a new trial, each railroad having filed a separate motion. No. 31976 is brought to this court by the Atlanta and West Point Rail Road Company, naming the plaintiff and the Southern Railway Company as defendants in error, and No. 31977 is brought to this court by the Southern Railway Company, naming the plaintiff and the Atlanta and West Point Rail Road Company as defendants in error. In general, the assignments of error by each railroad company are the same, and the cases have been considered together by this court.

No. 31976:Heyman, Howell & Heyman, of Atlanta, for plaintiff in error.

No. 31977:Neely, Marshall & Greene, of Atlanta, for plaintiff in error.

Geo. & John L. Westmoreland and Neely, Marshall & Greene, all of Atlanta, for defendants in error.

SUTTON, Chief Judge (after stating the foregoing facts).

1. On the general grounds of both motions for a...