Atlantic Coast Line R. Co. v. Thomas

• Decision Date: 14 March 1951
• Docket Number: No. 33281,No. 2,33281,2
• Citation: 64 S.E.2d 301,83 Ga.App. 477
• Parties: ATLANTIC COAST LINE R. CO. v. THOMAS
• Court: Georgia Court of Appeals

Page 301

64 S.E.2d 301

83 Ga.App. 477

ATLANTIC COAST LINE R. CO. v. THOMAS.

No. 33281.

Court of Appeals of Georgia, Division No. 2.

March 14, 1951.

Syllabus by the Court.

1. 'The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation be so essential, the proof of such negative lies on the party affirming it.'

(a) As construed by the Supreme Court of this State, the words 'burden of proof' in the Code, § 38-104, providing that 'What amount of evidence will change the onus or burden of proof is a question to be decided in each case by the sound discretion of the court,' refer to the burden or shifting of evidence.

(b) Under the presumptive negligence statute Code, § 94-1108, that 'In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such companies shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the companies in reference to such injury,' the burden of proof, after the plaintiff makes out a prima facie case, does not shift to the defendant, but remains with the plaintiff, as imposed by his pleadings, throughout the entire trial to establish his right to recover by a preponderance of the evidence.

(c) The burden of producing some evidence contrary to each of the alleged acts of negligence testified to on behalf of the plaintiff does, however, shift to the defendant railroad, and after its introduction the burden of going forward with the evidence is shifted back to the plaintiff.

(d) The case then stands as to the burden of proof and burden of evidence no defferently from one against a non-railroad defendant, and the presumptive negligence statute, § 94-1108, should not be given in charge to the jury.

(e) If the defendant does not file a denial of the plaintiff's allegations, but admits in its pleadings a prima facie case in favor of the plaintiff and sets up an affirmative defense, the burden of sustaining it is upon the defendant.

(f) Under the above stated principles of law the court erred in charging the jury, where no affirmative defense was set up here, that if the plaintiff made out a prima facie case he would be entitled to recover unless the defendants 'make good their defense,' and in charging in substance that if the plaintiff established, by a preponderance of the evidence, that the defendants were negligent in at least some of the particulars set out in his petition, and that such negligence was the proximate cause of the injury complained of, thus making out a prima facie case, the burden would be shifted to the defendants 'to make good their defense.'

2-7. The court erred in charging the jury as dealt with in divisions 2 and 7 of the opinion, infra, but did not err in charging as dealt with in divisions 3, 4 and 5 of the opinion and in failing to charge as dealt with in division 6 of the opinion.

Wilson G. Pedrick, L. E. Pedrick and Bennett, Pedrick & Bennett, all of Waycross, for plaintiff in error.

E. O. Blalock and Blalock & Blalock, all of Waycross, for defendant in error.

MacINTYRE, Presiding Judge.

C. M. Thomas brought suit in the Superior Court of Ware County, Georgia, against W. J. Wolfe, doing business as Luckey Cab Company, and Atlantic Coast Line Railroad Company to recover damages for injuries alleged to have been sustained by him when a taxicab of the defendant Wolfe, in which he was riding as a passenger, and a train of the defendant railroad collided at a public crossing in the City of Waycross, Georgia. It was alleged that the defendant Wolfe was negligent as follows: (a) In driving the taxicab over the tracks when the train was approaching; (b) in failing to see such train approaching; (c) in failing to stop, look and listen before driving the taxicab upon the crossing; (d) in failing to detect the presence of the train in time to prevent the collision; (e) in colliding with the train; (f) in failing to keep the taxicab under such control as to prevent the collision; (g) in failing to exercise extraordinary diligence to prevent such collision; (h) in failing to keep a careful and diligent lookout ahead; (i) in talking to a girl on the frong seat of the taxicab while it was approaching the crossing; (j) in going upon the tracks at a speed of at least 25 miles an hour, which speed was greater than was reasonable and safe under the conditions existing at the time and place. The following acts of negligence were charged against the defendant railroad: (a) In operating the train over the crossing at a speed of at least 35 miles an hour, which speed was greater than was reasonable and safe under the conditions existing at the time and place; (b) the engineer of the locomotive of the train and the agents and servants of the railroad in charge of the train failed to give warning of the approach of the train to the crossing by constantly tolling the bell of the locomotive, contrary to the statutes of the State of Georgia; (c) the engineer on the locomotive of the train and the agents and servants of the railroad in charge of the train failed to keep and maintain a constant and vigilant lookout along the track ahead of the engine while moving within the corporate limits of the City of Waycross, contrary to the statutes of the State of Georgia; (d) the engineer on the locomotive of the train failed to check the speed of the train as it approached the crossing; (e) the agents and servants of the railroad in charge of the train failed to give any warning, by tolling the bell or otherwise, of the approach of the train to the crossing; (f) the engineer and fireman on the train failed to check the speed of the train by application of the brakes when they saw, or in the exercise of ordinary diligence should have seen, the taxicab approaching the crossing in front of the train; (g) in permitting a failling station and evergreen trees and shrubbery to be upon its right of way at the place described in the petition, thereby obstructing the view of a train traveling north to an automobile approaching the crossing from the west, as was the taxicab, and of an automobile so approaching the crossing; (h) in failing to maintain at the crossing a watchman or any signal device to warn persons of the approach of trains. The joint and concurring negligence of the two defendants was alleged to be the proximate cause of the plaintiff's injury and damage.

Each of the defendants answered denying liability and each contended that the negligence of the other was the proximate cause of the injury. The jury returned a verdict for the plaintiff against both defendants in the sum of $45,925. The railroad's amended motion for new trial was overruled, and the exception here is to that judgment.

Special ground 4 complains that the court erred in charging the jury as follows: 'When the case opened the burden of proof rested on the plaintiff to show by a preponderance of the evidence the essential allegations of his petition. If the plaintiff carries this burden, he has made out a prima facie case and would be entitled to recover, unless the defendants make good their defense.' Special ground 5 complains of the following charge of the court: 'The burden rests on the plaintiff at the opening of the case to prove by a preponderance of the evidence, first, that the defendants were negligent in at least some of the particulars set out in his petition, and, second, that such negligence was the proximate cause of the injury complained of. If the plaintiff establishes both of these contentions by a preponderance of the evidence he has made out a prima facie case of liability against the defendants, and the burden is shifted to the defendants to make good their defense.' The exceptions common to both grounds are in substance as follows: (a) The charge placed upon the railroad the burden of proving conclusively that the plaintiff's injuries resulted solely from the negligence of the other defendant or did not result from any negligence of the railroad, whereas the burden was on the plaintiff throughout the entire trial to prove his case by a preponderance of the evidence; (b) the expression 'make good their defense' was misleading and confusing to the jury, in that it did not distinguish between the two defendants and their separate defenses and was calculated to cause the jury to believe that unless each made good his defense the plaintiff could recover against both. These grounds involve the same questions and may be considered together.

Since much confusion seems to exist respecting the burden of proof and burden of evidence, it may be profitable to here set forth the law in considerable detail. The Code, § 38-103, provides: 'The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation be so essential, the proof of such negative lies on the party so affirming it.' The Code, § 38-104, provides: 'What amount of evidence will change the onus or burden of proof is a question to be decided in each case by the sound discretion of the court.' The last named provision, while employing the language 'burden of proof', has been construed to refer to the burden of evidence. Hawkins v. Davie, 136 Ga. 550, 552, 71 S.E. 873. In Hyer v. C. E. Holmes & Co., 12 Ga.App. 837(3), 79 S.E. 58, it was held: 'The position of the 'burden of proof' is determined by the pleadings, and as to this the burden of proof is unchanging; once imposed it remains. But the burden of testimony may be shifted and alternate between the parties according to the contingencies and crises of the trial.' In Hawkins v. Davie, supra, it was said: 'The use of the expression 'burden of proof' in a dual sense, sometimes as...