Atlantic Coast Line R. Co. v. Clinard, 18819

• Decision Date: 17 January 1955
• Docket Number: No. 18819,18819
• Citation: 211 Ga. 340,86 S.E.2d 1
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY et al. v. Frances CLINARD.
• Court: Georgia Supreme Court

Page 1

86 S.E.2d 1

211 Ga. 340

ATLANTIC COAST LINE RAILROAD COMPANY et al. v. Frances CLINARD.

No. 18819.

Supreme Court of Georgia.

Jan. 17, 1955.

Rehearing Denied Feb. 17, 1955.

Syllabus by the Court.

Cases over which the Court of Appeals has jurisdiction can be transferred to the Supreme Court for decision, under the last sentence in article 6, section 2, paragraph 4 of the Constitution of 1945, only when the Judges of that court are equally divided on all questions presented by the writ of error, which would require either an affirmance or a reversal of the judgment on which error is assigned. Atlantic Coast Line R. Co. v. Godard, 211 Ga. 41, 83 S.E.2d 591.

Peacock, Perry, Kelley & Walters, Albany, for plaintiff in error.

W. H. Burt, Burt & Burt, Albany, for defendant in error.

Robert W. Reynolds, Albany, for party at interest not party to record.

CANDLER, Justice.

Frances Clinard filed a suit for damages against Atlantic Coast Line Railroad Company and R. H. Bramlett, its engineer, alleging that she was negligently injured by the defendants when an automobile in which she was riding as a guest passenger struck the side of a box car forming a part of a stationary freight train on a public (the Mock) crossing near Albany, Georgia. The defendants demurred to the petition generally; and also specially on eleven different grounds. All of the demurrers were overruled, and to that judgment there is a proper exception. The defendants also answered the petition and denied all acts of negligence charged against them. The case resulted in a verdict for the plaintiff, and the defendants moved for a new trial on the usual general grounds and by amendment added eight special grounds, in which they complain of several portions of the charge as given, of the court's failure to give specified and allegedly pertinent instructions to the jury, and of the alleged erroneous admission over timely and proper objection of what is alleged to be hearsay evidence, self-serving declarations, and other prejudicial and harmful testimony. The amended motion for new trial was denied, and the movants sued out a writ of error to the Court of Appeals. On November 24, 1954, the Court of Appeals transferred the case to this court for decision. The transfer order recites: 'This case came before this court upon a writ of error from the City Court of Albany, and upon a record formally certified and transmitted by the clerk of that court. Upon consideration of the case by the Court of Appeals sitting as a body, the court was equally divided as to the judgment that should be rendered, Townsend, Quillian and Nichols, JJ., being for affirmance, and Felton, C.J., Gardner, P. J., and Carlisle, J., being for reversal. It is therefore ordered that the case be transferred to the Supreme Court of Georgia, in complance with the last subdivision of Paragraph 8, Section 2, Article 6, of the amendment to the Constitution of the State ratified in the election of August 7, 1945.' The record transferred to this court contains a per curiam memorandum opinion which shows that there was another guest passenger riding in the car at the time of the collision here involved. The other guest passenger was Horace C. Marshall. He also sued these same defendants for injuries sustained in the collision, recovered damages, and the Court of Appeals in his case reversed the judgment denying the movants a new trial, basing its reversal solely on the general grounds of the motion. See Atlantic Coast Line R. Co. v. Marshall, 89 Ga.App. 740, 81 S.E.2d 228. In the instant case and in the per curiam memorandum opinion, it...