Atlantic Coast Line R. Co. v. Blount, 42727

Decision Date07 June 1967
Docket NumberNo. 42727,No. 3,42727,3
Citation156 S.E.2d 409,116 Ga.App. 86
CourtGeorgia Court of Appeals

Bennett, Pedrick & Bennett, Larry E. Pedrick, Wilson G. Pedrick, Waycross, for appellant.

Benjamin Smith, Jr., Leon A. Wilson, II, Waycross, for appellee.

Syllabus Opinion by the Court


This is an action under the Federal Employers' Liability Act. The employee, while standing at the floor level on the framework of a caboose under construction and attempting to straighten a bent rivet above the level of his head, slipped and fell through the framework, injuring his back. The employer appeals from an adverse verdict and judgment, the trial court having overruled its motion for new trial. Held:

1. The first four enumerated errors are directed to the remarks of counsel for the employee in his opening statement and argument to the jury that assumption of risk was no defense to the action, instructions of the court to the jury to the same effect, and the failure of the trial judge to give requested instructions concerning assumption of risk. The instructions as given by the court are identical to the instructions previously approved by this court as permissible cautionary instructions, and to this extent the ruling in Atlantic Coast Line Railroad Company v. Smith, 107 Ga.App. 384(2), 130 S.E.2d 355 is controlling in the present case. In addition to the cases there cited, see Koshorek v. Pennsylvania Railroad Company, 318 F.2d 364, 367 (3d Cir.); Atlantic Coast Line Railroad Company v. Burkett, 192 F.2d 941, 943 (5th Cir.). The remarks of counsel concerning assumption of risk were not incorrect or misleading, and counsel and the court made it clear that the jury was bound by the instructions of the court as to the law. These instructions appear to be complete as to negligence and proximate cause, and except with respect to assumption of risk there is no contention of any error in the instructions as given. As counsel are entitled to a wide latitude in discussing the evidence of a case and wherein the law applies, and as cautionary instructions by the court on assumption of risk are permissible, the requested instructions were erroneous to the extent of requiring the court to inform the jury that assumption of risk 'has no part in the argument of counsel, or in the instructions of the court, or in your deliberations,' and the court properly refused to give the requested instructions. See De Pascale v. Pennsylvania Railroad Company, 180 F.2d 825 (3d Cir.). These enumerated errors are without merit.

2. Eight of the remaining enumerated errors relate to opinions of the plaintiff and other employees concerning the need for a temporary floor covering for the caboose as a platform as a safety measure for employees such as the plaintiff, adverse comment on a portion of the defendant's answer to the effect that the plaintiff was not an employee required to work inside the caboose and that 'it was perfectly safe for those whose duties required them to be inside of the caboose,' and comment that it was unsafe to drive rivets where the employee was injured. The plaintiff and the other witnesses were not safety experts, but they displayed in varying degrees a vast knowledge of the working conditions and measures used to prevent injuries, based on observation and experience as railroad employees, and the situation under which the injury occurred...

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5 cases
  • Townsend v. State, 47424
    • United States
    • Georgia Court of Appeals
    • 22 November 1972 and leave its weight and effect to be determined by the jury.' Eighty-one years later, in 1967, our court in Atlantic C.L.R. Co. v. Blount, 116 Ga.App. 86(2), 156 S.E.2d 409 adopted this propensity towards enlargement when in doubt of admissibility of evidence as being the expression of ......
  • Sharfuddin v. Drug Emporium, Inc.
    • United States
    • Georgia Court of Appeals
    • 20 February 1998
    ...the factual basis and reasons for such opinion. McGahee v. Phillips, 211 Ga. 118, 84 S.E.2d 19 (1954); Atlantic Coast Line R. Co. v. Blount, 116 Ga.App. 86, 156 S.E.2d 409 (1967). To the extent that a lay witness qualifies testimony as to facts as a belief, opinion, or conclusion, this is a......
  • Southern Ry. Co. v. Minor
    • United States
    • Georgia Court of Appeals
    • 20 June 1990
    ...384(2), 130 S.E.2d 355 (1963), that a similar charge was permissible as a cautionary instruction. Accord Atlantic Coast Line R. Co. v. Blount, 116 Ga.App. 86(1), 156 S.E.2d 409 (1967). Because Southern's defenses included the theories that Minor failed to exercise ordinary care for his own ......
  • Bunn v. Broadway Parking Center, Inc., 42667
    • United States
    • Georgia Court of Appeals
    • 9 June 1967
    ... ... Code §§ 12-101 and 12-102. Atlantic Coast L.R. Co. v. Baker, 118 Ga. 809(1), 45 S.E. 673 ... ...
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