Atlantic Coast Line R. Co. v. Jones

• Decision Date: 24 February 1909
• Citation: 63 S.E. 834,132 Ga. 189
• Parties: ATLANTIC COAST LINE R. CO. v. JONES.
• Court: Georgia Supreme Court

63 S.E. 834

132 Ga. 189

ATLANTIC COAST LINE R. CO. v. JONES.

Supreme Court of Georgia

February 24, 1909

Syllabus by the Court.

The court did not err in admitting in evidence the schedule of wages for enginemen and the time-table. This evidence was material, and should have been submitted to the jury for their consideration in their endeavors to fix the amount of damages allowable in the case.

[Ed Note.-For other cases, see Death, Cent. Dig. § 88; Dec. Dig § 67. ^[*]]

The excerpt from the rulebook of the company, containing an explanation of the meaning of certain "signs," was admissible to contradict the oral testimony of certain witnesses, who had given evidence touching the meaning of those signs.

[Ed Note.-For other cases, see Master and Servant, Dec. Dig. § 267. ^[*]]

The court did not, for any reason assigned, err in charging the jury as follows: "But if you should, on that question decide that the company was liable, why, then, you would consider the other question as to the amount of damages that ought to be awarded the plaintiff as compensation for the life of her husband." Other portions of the charge to the jury show clearly that, by the expression "compensation for the life of her husband," the court meant compensation for the value in money of his life his capacity to earn, actual and prospective, being taken into consideration.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 705-713; Dec. Dig. § 296. ^[*]]

There was no error, under the facts of the case, in charging the jury as follows: "The plaintiff makes a prima facie case for recovery when she shows you, from the evidence, that her husband, Charles J. Jones, was free from fault, and that his death was caused by the defendant or by its agents or employés engaged in the service of the defendant at the time the injuries were inflicted which caused his death." Under the facts of this case the jury could not have been left under the impression that the plaintiff would have made out a prima facie case "by showing negligence of agents and employés of defendant, whose negligence was not complained of in plaintiff's petition." Nor did the court, by the use of the words "When she shows you," etc., express or intimate an opinion, on the part of the court, to the effect that the plaintiff had shown that her husband was free from fault. The word "when," as here used, has, as is frequently the case, a conditional or hypothetical meaning.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 422; Dec. Dig. § 1066; ^[*] Trial, Cent. Dig. §§ 436-438; Dec. Dig. § 193. ^[*]]

The court did not err in charging that, "whenever it is shown you by evidence that the plaintiff's husband [the deceased] was free from fault and was not guilty of any negligence, *** that *** contributed to the cause of his death, then the burden would be shifted," and that, in establishing one of the two defenses open to it, it would be required to do so by a preponderance of the evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252. ^[*]]

Under the evidence in the case, the court did not err in giving the following charge to the jury: "If you believe that the plaintiff makes out that kind of a prima facie case, then the burden would be shifted to the defendant to show that he, the plaintiff's husband, was not without fault, that he was negligent, or that the defendant and its employés exercised and used all ordinary care and diligence to prevent the injury."

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908; Dec. Dig. § 265. ^[*]]

Inaccuracies in a portion of the charge excepted to will not work a reversal when it appears from an examination of the entire charge that they were harmless.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295. ^[*]]

Considering the very broad, though somewhat indefinite, allegations of negligence in the petition, and that evidence was admitted, without objection, relative to the failure of the engineer on the switch engine to blow the whistle and stop the switch engine at a given point, where such precautions should have been observed, the court did not err in including, as a part of the statement of the contentions of the plaintiff, a reference to the acts of negligence just referred to.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 293. ^[*]]

There is no merit in the assignment of error on the charge of the court to the effect that the jury might consider "who the witnesses are, their manner of testifying, and the character of the statements made by any particular witness or witnesses." The last clause in this charge is not equivalent to charging the jury that they might consider the "character of the witnesses," and it did not authorize the jury "to give their personal knowledge of or acquaintance with the witnesses" weight in passing upon the credibility of the witnesses.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 236. ^[*]]

Evidence having been actually introduced to establish a certain fact, it was not error for the court to so state to the jury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 436-438; Dec. Dig. § 193. ^[*]]

The charge of the court in reference to the use of the mortality and annuity tables was not open to the objection urged.

The criticism upon the charge as a whole raises no question for decision here, being too general in its character.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. § 231. ^[*]]

Failure upon the part of the court to define such expressions as "ordinary and reasonable care and diligence," and "preponderance of the evidence," there being no written request to instruct the jury as to the meaning of those expressions, is not error.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 648; Dec. Dig. § 259. ^[*] ]

The court did not abuse his discretion in refusing to grant a mistrial, insisted on by counsel for the defendant company, because of remarks made by counsel for plaintiff in the course of argument.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. § 125. ^[*]]

There was sufficient evidence to authorize the verdict.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 276. ^[*]]

Error from Superior Court, Decatur County; W. N. Spence, Judge.

Action by Molly Jones against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

A charge, in an action for the death of an engineer, that, if the jury should decide that the company was liable, then to consider the amount of damages that ought to be awarded plaintiff as compensation for the life of her husband, even if open to the criticism that it permitted a recovery for loss of the companionship of her husband when she was only entitled to recover the financial value of his life earnings or capacity to earn, was entirely remedied by other portions of the charge, making it clear that the court meant by the expression "compensation for the life of her husband" the value of his life as measured by his earning capacity, actual and prospective.

Plaintiff is the widow of Charles J. Jones, and suit was brought to recover damages for the death of her husband, alleged to have been caused by the negligence of the employés of the defendant company. The deceased, at the time of his death, was in the employment of the defendant as a locomotive engineer, and was running on that division of the road of defendant which extends from Thomasville to Montgomery. The locomotive, on which he was engineer, was pulling an extra freight train, designated as "No. 708." At the time, the movements of his train were controlled by the train dispatcher at Dothan, Ala., a station between Thomasville and Montgomery. On the morning of the day of his death he received an order that his train would run extra between Thomasville and Climax; Climax being the first station west of Bainbridge. At Climax he received a second order that his train would run extra between Climax and Iron City, with the instruction in the order that he would look out for work trains. He did so, and reached Bainbridge on this order, arriving in Bainbridge at or about 11 a. m. He stopped his train in Bainbridge at the usual place, after placing two cars on the side track, which left him some 32 cars in his train. The conductor of this train registered the time of arrival at 11:15, and leaving time at 11:20. The operator at Bainbridge changed the time of leaving, as registered by the conductor, from 11:20 to 11:24. Between the depot at Bainbridge and the drawbridge over Flint river, a distance of less than a mile, the engine of plaintiff's husband collided with the train of cars, which was being pushed by a switch engine. At the time of the collision the deceased was in his place on his engine, looking out of the window, and the conductor was on the seat of the fireman, on the opposite side from plaintiff's husband, keeping a lookout from that window, there being a curve at that point. The fireman and conductor leaped from the engine just before the collision took place; the engineer remained at his post, and was killed. The evidence as to the giving of signals and the rate of speed, and observing other precautionary measures, upon the part of the deceased and the engineer on the switch engine, was conflicting, there being both direct testimony and evidence of certain physical facts introduced to illustrate this question, both from the standpoint of the company and the plaintiff.

Certain rules of the company were introduced in evidence, and there was testimony as to the distance from Bainbridge to stations beyond that point. There was much...