Atlantic Coast Line R. Co. v. Marshall
| Decision Date | 26 October 1955 |
| Docket Number | No. 35777,No. 1,35777,1 |
| Citation | 93 Ga.App. 134,91 S.E.2d 96 |
| Parties | ATLANTIC COAST LINE RAILROAD COMPANY et al. v. H. C. MARSHALL |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The court did not err in overruling the motion for a judgment notwithstanding the verdict and the general grounds of the motion for a new trial.
2. For the reasons stated in divisions two, four, seven and eight of the opinion, the court erred in overruling the amended motion for a new trial.
This is the second appeal of this case. Atlantic Coast Line R. Co. v. Marshall, 89 Ga.App. 740, 81 S.E.2d 228. On the second trial of the case the jury found for the plaintiff against the railroad and in favor of the defendant's engineer. The defendant made a motion for a directed verdict which was overruled, a motion for a judgment notwithstanding the verdict and a motion for a new trial which was amended. The court overruled the motion for a directed verdict, the motion for a judgment notwithstanding the verdict and the motion for a new trial and the defendant excepted.
Peacock, Perry, Kelley & Walters, Albany, for plaintiffs in error.
H. P. Burt, Burt & Burt, Albany, for defendant in error.
1. The court did not err in overruling the motion for a judgment notwithstanding the verdict and in overruling the general grounds of the motion for a new trial. The principal witness for the plaintiff in this case was Clyde V. Clements, the driver of the automobile in which the plaintiff was riding. The railroad insists that the testimony of Clements was contradictory and inconsistent on the question whether the smoke, haze or fog so affected visibility on the night in question as to make it impossible or extremely difficult for the driver to see the railroad car on the crossing for a distance of 500 feet or less so as to place a duty on the railroad of giving some additional warning to motorists of the presence of the car on the crossing. On direct examination Mr. Clements testified that the haze or fog prevented him from seeing 500 feet ahead and that he did not see the train as soon as he turned on his bright lights. On cross-examination he testified that the fog was not heavy enough to interfere with his seeing any distance. His testimony as to when he first observed the fog and how far he was from the crossing at the time was contradictory and confusing. In Mr. Clements' own case this court held by a majority ruling that the jury was authorized to find for the plaintiff. See Atlantic Coast Line R. Co. v. Clements, 92 Ga.App. 451, 88 S.E.2d 809. In this case, where Mr. Clements' testimony is no more contradictory and confusing than it was in his own case, and where the rule of the construction of Mr. Clements' testimony (he not being a party) is more favorable to the plaintiff, it cannot be said as a matter of law that a verdict was demanded for the railroad. It was the province of the jury to construe and reconcile the testimony of Mr. Clements and arrive at its meaning.
2. The fourth ground of the amended motion for a new trial excepts to the charge of the court on the ground that the court so often repeated certain principles of law which were favorable to the plaintiff that the charges amounted to an expression of opinion by the court and constituted an argument by the court in favor of the plaintiff on the questions involved in the charges excepted to. One of the charges complained of was given over a dozen times. It is always difficult to decide when repetitious charges are harmful. As this case is to be tried again we are not going into that question in this case. The court does fell that it should make the observation for the benefit of bench and bar that care should be exercised to see to it that requested charges on the same point should not subject the court's charge to the criticism that it is unduly repetitious. The fact that one instruction is unduly stressed would not immunize the charge from criticism merely because one party happened to request the repetitious charges. It is the trial court's duty to see that the charge is fair in any and all events.
3. There is no merit in ground five of the amended motion for a new trial.
4. It was error for the court to give the charge complained of in ground six of the amended motion. This exception is governed by the ruling in a companion case, Atlantic Coast Line R. Co. v. Clements, 92 Ga.App. 451(1), 88 S.E.2d 809, which deals with as similar charge.
5. Special ground seven of the amended motion for a new trial complains that the court erred in charging: ...
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Atlantic Coast Line Railroad Company v. Kammerer
...both to exist and not exist. See, e. g., Atlantic Coast Line R. Co. v. Marshall, 1954, 89 Ga.App. 740, 81 S.E.2d 228 and 1955, 93 Ga.App. 134, 91 S.E.2d 96, companion case Atlantic Coast Line R. Co. v. Clements, 1955, 92 Ga.App. 451, 88 S.E.2d 809, Atlantic Coast Line R. Co. v. Coxwell, 195......
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Atlantic Coast Line R. Co. v. Coxwell
... ... [93 Ga.App. 160] Mrs. Martha Coxwell sued Clyde V. Clements and the Atlantic Coast Line Railroad Company for damages for personal injuries. The occurrence was the same one involved in the case of Marshall v. Atlantic Coast Line R. Co. later referred to, and the facts alleged in the amended petition in the instant case are substantially the same as were alleged in the former case except that in the instant case the following allegations were relied on by the plaintiff: 'At the place where ... ...
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...concerning the accident and a previous condition. The objection was good and should have been sustained, Atlantic Coast Line R. Co. v. Marshall, 93 Ga.App. 134(7), 91 S.E.2d 96; Grooms v. Pacific Employers, Ins. Co., 94 Ga.App. 865, 867, 96 S.E.2d 525; Paulk v. Thomas, 115 Ga.App. 436(3a), ......
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