Atlanta & West Point R. Co. v. Armstrong, 51564
| Decision Date | 19 April 1976 |
| Docket Number | No. 51564,No. 3,51564,3 |
| Citation | 138 Ga.App. 577,227 S.E.2d 71 |
| Court | Georgia Court of Appeals |
| Parties | ATLANTA & WEST POINT RAILROAD COMPANY v. M. L. ARMSTRONG, Jr., b/n/f |
Syllabus by the Court
The plaintiff, appellee here, brought a wrongful death action against the defendant-appellant, seeking to recover for the death of his father in an automobile-train collision. The jury found for the plaintiff and the defendant appeals.
Heyman & Sizemore, William H. Major, William B. Brown, Robert E. Tritt, Atlanta, for appellant.
Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Atlanta, for appellee.
1. The defendant's first enumeration of error challenges the trial judge's charge to the jury on the duty to stop at a railroad grade crossing. The applicable law at the time of the accident was Code Ann. § 68-1661(c) (repealed by Acts 1974, pp. 633, 691): 'Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within 50 feet but not less than 15 feet from the nearest rail of such railroad, and shall not proceed until he can do so safely, when: (c) An approaching train is plainly visible and is in hazardous proximity to such crossing.'
The jury requested a clarification of the law on this point and then returned for a recharge. The transcript reveals the following occurred after the trial judge recharged in the language of Code Ann. § 68-1661(c):
The Foreman: This inquiry was never answered by the court. It is clear however that the first part of this question would be correctly answered in the affirmative: The code section imposes a duty to stop when an approaching train is plainly visible and in hazardous proximity to the crossing and if there is no approaching train or the driver cannot see it (as opposed to 'did not see' it) there is no duty. And assuming that the second part of the question, if completed, had been 'If he doesn't see a train (is the law that he does not have to stop)?' The correct answer would have been, in the negative: There is a duty to stop at crossings if the driver could have seen the approaching train regardless of whether or not he did in fact see it. Central of Ga. Ry. Co. v. Leonard, 49 Ga.App. 689, 701, 176 S.E. 137.
The jury foreman continued: Foreman: The Court:
The defendant contends that clarification was erroneous because it gave the jury the impression that the decedent had no duty to stop unless he actually saw the train. We disagree. The jury foreman merely asked whether the law required as an absolute duty that motorists stop at crossings regardless of the presence of approaching trains and the trial judge correctly answered in the negative; there was no absolute duty to stop, only that a driver must stop if the train was plainly visible and within hazardous proximity to the crossing. Nowhere did the judge charge that there was no duty to stop unless the driver actually saw the train. When a statute is the essential part of a jury charge, the court may explain the meaning thereof if he does so correctly. Unitee Motor Freight Terminal Co. v. Hixon, 78 Ga.App. 638(6), 51 S.E.2d 679. Even if the colloquy between the judge and foreman could be construed as amounting to a confusing charge, the transcript reveals that the judge immediately thereafter charged that the decedent must have been in the exercise of ordinary care as he approached the crossing. This was a correct statement of the law and negatives the defendant's claim that the charge implied the decedent would have to have actually seen the train to be in violation of the statute.
The defendant urges that the judge's statement to the jury to 'interpret those words (the code section) according to the evidence in the case' improperly delegated to the jury the right to construe the statute as it saw fit. When the charge is read as a whole the jury was in effect instructed to weigh the evidence and to conclude whether or not the train was plainly visible and within a hazardous proximity in other words, whether or not the decedent would be in violation of the statute. This was not error. Sweet v. Awtry, 70 Ga.App. 334(6), 28 S.E.2d 154. This language does not leave it for the jury to determine whether the act, if committed as alleged, was or was not negligence. Williams v. Southern Rwy. Co., 99 Ga.App. 503, 109 S.E.2d 343. It merely instructs the jury to determine whether or not, under the evidence, the decedent was required to stop; it does not instruct the jury to determine whether or not it was negligence for the decedent to fail to stop if the train was plainly visible and within a hazardous proximity.
2. The defendant urges that error was committed when the trial judge charged the jury on negligence per se after indicating that he would not so charge. This charge was beneficial to the defendant, because its position was that the plaintiff's decedent was guilty of violating former Code Ann. § 68-1661(c), but it argues that the judge's failure to inform its counsel of the intent to so charge demands a new trial under Code Ann. § 70-207(b). The defendant is in error for several reasons. First, Code Ann. § 70-207(a) provides that no party may complain of the giving of an instruction to the jury unless he objects thereto before the jury returns its verdict; the defendant did not object to the giving of the charge on negligence per se. Second, the defendant did not present the court with a written request to charge on negligence per se and thus there was no requirement, under Code Ann. § 70-207(b) that the trial judge inform the...
To continue reading
Request your trial
-
Claxton Poultry Co., Inc. v. City of Claxton
...Ga.App. 817, 821(3), 152 S.E.2d 905; Seagraves v. ABCO Mfg. Co., 121 Ga.App. 224, 226(3), 173 S.E.2d 416; Atlanta & W.P.R. Co. v. Armstrong, 138 Ga.App. 577, 581(5), 227 S.E.2d 71. 6. The next complaint is that the trial court erred in failing to give plaintiff Claxton Poultry Company, Inc.......
-
John Crane, Inc. v. Jones
...47 (1921). Accord Gilson v. Mitchell, 131 Ga. App. 321, 326-327, 205 S.E.2d 421 (1974). See also Atlanta & West Point R. Co. v. Armstrong, 138 Ga.App. 577, 581(6), 227 S.E.2d 71 (1976) (no error in refusing to charge "contributing factor" where principle substantially covered). 7. Compare M......
-
Williams v. Central of Georgia Ry. Co.
...under a legal duty to stop. The jury was also charged with the then existing law. Code Ann. § 68-1661. See Atlanta & West Point R. Co. v. Armstrong, 138 Ga.App. 577, 227 S.E.2d 71. "There was no error in charging the jury the contentions of the (appellee) relating to various acts of alleged......
-
Post-Tensioned Const., Inc. v. VSL Corp., POST-TENSIONED
...not object to any charge of the trial court and may not raise these issues for the first time on appeal. Atlanta & West Point R. Co. v. Armstrong, 138 Ga.App. 577(2), 227 S.E.2d 71; Christiansen v. Robertson, 237 Ga. 711, 229 S.E.2d 472; Code Ann. § 7. Enumerations 8, 9 and 10 are not argue......