Atlantic Coast Line R. Co. v. Clinard, 35645

• Decision Date: 19 October 1955
• Docket Number: No. 35645,No. 2,35645,2
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY et al. v. CLINARD
• Court: Georgia Court of Appeals

Page 923

90 S.E.2d 923

93 Ga.App. 64

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

No. 35645.

Court of Appeals of Georgia, Division No. 2.

Oct. 19, 1955.

Rehearing Denied Nov. 15, 1955.

Syllabus by the Court

1. The court did not err in overruling the demurrers of the defendants.

2. The court erred in overruling the special grounds 4, 5, and 9 of the motion for new trial as dealt with in the body of the opinion.

3. Since a new trial must be had, it is unnecessary to pass upon the general grounds of the motion for new trial.

Miss Frances Clinard brought suit against the Atlantic Coast Line Railroad Company and R. H. Bramlett as engineer, for injuries received while she was riding as a guest in a car driven by Sgt. Clyde Clements.

The plaintiff received her injuries on account of the fact that the car in which she was riding as a guest ran into a freight train car on the track of the defendants, which freight car, part of a large number in the freight train, blocked Mock Road, the highway on which the car in which the plaintiff was riding, was traveling. The freight car in question (and others) had been uncoupled from the other part of the train. The other part of the train was engaged in the duties of switching.

Demurrers were filed by the defendants and overruled by the court, to which judgment the defendants excepted. On the trial, the jury returned a verdict for the plaintiff. The defendants filed a motion for a new trial based on the general grounds and several special grounds. The court denied the motion, and the bill of exceptions assigns error on that order.

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

Burt & Burt, H. P. Burt, Albany, for defendants in error.

GARDNER, Presiding Judge.

1. The court did not err in overruling the demurrers.

2. Special grounds denominated 4 and 5 are substantially the same as ground 4 in Atlantic Coast Line R. Co. v. Clements, 92 Ga.App. 451, 88 S.E.2d 809. The ruling there is controlling here and these grounds show reversible error.

3. Special ground 6 assigns error on the following excerpt from the charge of the court: 'I charge you, that a railroad company shall keep in order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, according to a spirit of the road laws. Such crossings shall include the width of land on both sides of the road allowed by charter or appropriated by the company therefor, and as many feet beyond each way as is necessary for a traveler to get on and off crossings safely and conveniently.

'In other words, the defendant owed the plaintiff the duty to keep the approaches of the Mock Crossing in good order, and if they were negligent in this and the negligence was the proximate cause, or combined with the negligence of Sergeant Clements, if any, to constitute the proximate cause, then, in that event, plaintiff would be entitled to recover.' In view of the whole charge of the court there is no merit in this contention.

4. Special ground 7 assigns error on the following excerpt from the charge of the court: 'The plaintiff further ocntends that her injuries are permanent, that she now suffers and has suffered from these injuries from the time they were sustained, that she has suffered up to the time of the trial and that she will continue to suffer mental and physical pain in the future. If you find that she has suffered pain, mental or physical, up to the present time, you could allow up to the present time, if you think she is entitled to recover. If you find that her...