Atlantic Coast Line R. Co. v. McDonald, 38583
| Decision Date | 24 February 1961 |
| Docket Number | Nos. 1,No. 38583,2,38583,s. 1 |
| Citation | 103 Ga.App. 328,119 S.E.2d 356 |
| Parties | ATLANTIC COAST LINE RAILROAD COMPANY v. J. M. McDONALD |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In a case brought under the Federal Employers' Liability Act, it is not error for the trial judge to fail to charge without request merely that the plaintiff had the duty of exercising ordinary care for his own safety.
2. Where the pleadings and the evidence authorize a recovery both of general damages for the plaintiff's loss of ability to labor and earn money as an element of pain, and of special damages for loss of earnings past and prospective, a charge which submits these elements of the plaintiff's claim to the jury is not erroneous as authorizing a double recovery.
3. Where, upon a timely and proper objection to improper argument of counsel for the plaintiff the trial court failed to interpose and prevent counsel from making such improper argument and failed to instruct the jury that it should not consider such improper argument and thus in effect overruled the objection of counsel for the defendant to such improper argument, it was erroneous and requires a new trial.
4. (a) The admission in evidence of testimony of a witness over objection is not cause for reversal where it appears from the record that substantially the same testimony was elsewhere admitted without objection.
(b) A witness who is shown to be familiar with the facts and who testifies to the facts upon which he bases his opinion may state facts by way of a conclusion, and where such facts thus stated are not the ultimate fact to be decided by the jury no error is shown by the admission over objection of such testimony.
5. The evidence authorized the verdict.
J. W. McDonald brought suit against the Atlantic Coast Line Railroad Co. under the Federal Employers' Liability Act to recover for injuries which he allegedly sustained as the result of being splashed with water containing a caustic solution while he was working at his job as a painter with the defendant. It appeared from the evidence that the plaintiff, along with three other employees, was engaged in working on a Diesel engine of the defendant in its shops at Waycross. He and his coworkers were in the process of removing the paint and primer from the engine preparatory to repainting it. For the purpose of accomplishing this task, a solution containing potash and other caustic materials was applied to the engine with long-handled brushes and allowed to remain thereon for a few minutes and then washed off by applying to the engine a stream of water from a hose. The plaintiff and one employee were working on one side of the engine and the other two employees on the other, and while thus engaged one of the employees working on the opposite side of the engine caused the stream from the house to be directed over the engine so that some of the water containing the caustic matter in solution was splashed onto the plaintiff's clothing. As the result of this incident, the plaintiff contended that he sustained burns to his head and to parts of his body, which, according to one phase of the testimony, caused the disability from which he was suffering.
Upon the trial of the case, the jury returned a verdict for the plaintiff. The defendant made a motion for a new trial on the general grounds which it amended by adding nine special grounds. The trial court overruled that motion and that judgment is excepted to in this court.
Bennett, Pedrick & Bennett, Larry E. Pedrick, John W. Bennett, Waycross, for plaintiff in error.
Benjamin Smith, Jr., Leon A. Wilson, Waycross, for defendant in error.
1. The first special ground of the motion for a new trial complains of the failure of the trial judge to charge without request that the plaintiff employee was charged with the duty of exercising ordinary care for his own safety. This case, of course, is one under the Federal Employers' Liability Act. In charging the jury the law applicable to the case, the judge said: 'Gentlemen of the jury, the law I referred to [Federal Employers' Liability Act] further provides that in all such actions the fact that the employee may have been guilty, himself, of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. * * *
* * *
'Negligence means the absence of or the failure to exercise the degree of care required by law to be exercised.
'I charge you, gentlemen, that the duty is upon the defendant to exercise ordinary diligence.
'Ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.
'The absence of such diligence is termed ordinary negligence.
'If the defendant exercised that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances to prevent injury to another, it would not be guilty of negligence in failure to exercise ordinary care.
'If, on the other hand, it failed to exercise that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances, it would be guilty of negligence in failure to exercise ordinary care. * * *
Liability Act.
'I charge you, gentlemen, that if you find that plaintiff was injured solely by reason of his own negligence he cannot recover.'
These instructions were proper and sufficiently informed the jury as to the applicable law respecting the duty of care devolving upon the respective parties under the Federal Employers' Liability Act. It would not have been proper for the trial judge to have charged without qualification that a duty devolved upon the plaintiff of exercising ordinary care. Plaspohl v. Atlantic Coast Line R. Co., 87 Ga.App. 506, 508(2), 74 S.E.2d 491. This ground of the motion shows no error.
2. In the second and third special grounds of the motion for a new trial, complaint is made of the following portions of the charge:
These portions of the charge are excepted to, the substance of the exception being that they authorized a double recovery; that the plaintiff could not recover and the jury could not award damages based on pain and suffering as the result of the plaintiff's loss of the ability to labor and earn money, and also, award damages for loss of earnings. This contention is without merit in view of the ruling in Jones v. Hutchins, 101 Ga.App. 141, 113 S.E.2d 475, wherein in the majority opinion and in the dissenting opinion...
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...with a duty go govern the progress of a trial.' Heard v. Heard, 99 Ga.App. 864, 869, 110 S.E.2d 76, 80; Atlantic Coast Line R. Co. v. McDonald, 103 Ga.App. 328, 339, 119 S.E.2d 356, 364. 4. Appellant contends the Court erred in failing to grant continuance upon motion by defense counsel. (E......
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