Bazemore v. Powell

• Decision Date: 29 October 1936
• Docket Number: No. 25662.,25662.
• Citation: 188 S.E. 282,54 Ga.App. 444
• Parties: BAZEMORE. v. POWELL et al.
• Court: Georgia Court of Appeals

54 Ga.App. 444

188 S.E. 282

BAZEMORE.

v.POWELL et al.

No. 25662.

Court of Appeals of Georgia,

Division No. 2.

Oct. 29, 1936.

Syllabus by the Court.

1. None of the special grounds of the motion for new trial shows error.

2. The evidence, though conflicting, was sufficient to authorize the verdict.

3. The court did not err in overruling the motion for new trial.

Error from City Court of Savannah; Alex R. MacDonell, Judge.

Action by I. W. Bazemore against L. R. Powell, Jr., receiver, and others. Verdict for defendant, and to review an order refusing a new trial, plaintiff brings error.

Affirmed.

Oliver & Oliver, of Savannah, for plaintiffs in error.

Anderson, Cann & Dunn, of Savannah, for defendant in error.

SUTTON, Judge.

This case was previously before this court as reported in Lewis v. Powell, 51 Ga.App. 129, 179 S.E. 865, to which reference may be made for a detailed statement of the pleadings. After this court reversed the judgment of the trial court sustaining a demurrer to the petition, a trial was had and the jury returned a verdict for the defendant. The plaintiff filed a motion for new trial on the general grounds and on several special grounds which was overruled and the plaintiff excepted.

The first special ground is that the court erred in excluding from the con-sideration of the jury evidence of a witness that "on a night shortly before this injury occurred, I was driving into town in my automobile. There was no flagman, the lights were not burning. I heard no signal from either a bell or whistle and the junk pile to the right of the road obscured my view and the engine was crossing the track as my automobile approached. With the greatest effort I was able to stop my automobile only within two or three feet of the engine as it passed." As to the absence of a flagman at the crossing, the ruling of this court in Lewis v. Powell, supra, that the defendant was under no obligation to maintain one, became the law of this case. As to the proffered proof of acts of negligence in not giving a signal by the ringing of a bell or the blowing of a whistle on a former occasion, it is the general rule that in a suit for negligence evidence of similar acts or omissions on other and different occasions is not admissible, and the proffered evidence did not show any reason for an exception to this rule. Butler v. Central of Georgia Ry. Co., 41 Ga.App. 115, 119 (5), 151 S.E. 834; Hollomon v. Hopson, 45 Ga.App. 762, 166 S.E. 45; City of Dalton v. Humphries, 139 Ga. 556 (3), 77 S.E. 790.

The second special ground relates to the exclusion of testimony of a witness that her husband narrowly escaped injury from the collision of a truck with a train at the crossing in question at a time when he was driving a truck but when the witness was not present. Obviously, such testimony was hearsay and clearly inadmissible.

The third special ground complains of a portion of the charge of the court in which it was stated that the allegation of negligence as to the absence of a flagman at the crossing was out of the petition, that is, that it was not to be considered by the jury. When this court previously dealt with this on a demurrer to the petition, the petition contained the allegation that it had been the custom of the railroad to maintain a flagman at the crossing, and the ruling of the court that the defendant was not obliged to do so became the law of this case. Moreover, there was no evidence of any such custom. The ground is without merit.

The fourth ground complains of a portion of the charge of the court in which it was stated that the plaintiff could not recover on any allegation not stated in the petition, to which was added: "So, you must confine yourselves to the allegations of negligence in the declaration, and as to those allegations of neg-ligence--all of them--I shall later charge you when I take them up, except one, and that is this allegation of negligence with reference to the blow-post law." While the quoted portion is not quite clearly stated, it may be said to be more unfavorable to the defendant than to the plaintiff in referring to "all of them" in connection with the allegations, because, under the law of the case as made in the previous decision of this court, the only allegation of negligence left for the consideration of the jury was whether or not the defendant was negligent in approaching the crossing. The blow post law (Code 1933, §§ 94-506-94-508, 94-9902) puts on the defendant the duty of erecting blow posts and "the engineer operating the locomotive engine of any railroad train moving over the track of said railroad shall be required, when he reaches the said blowpost, as a signal of approach to said crossing, to blow through said whistle two long and two short blasts at intervals of five seconds between each blast; said blasts to be loud and distinct. In addition thereto, after reaching the blowpost furthest removed from said crossing, and while approaching said crossing, he shall keep and maintain a constant and vigilant lookout along the track ahead of said engine, and shall otherwise exercise due care in approaching said crossing, in order to avoid doing injury to any person or property which may be on said crossing, or upon the line of said railway at any point within 50 feet of such crossing." Code, § 94-506. The charge of the court, as contained in the record, shows that the jury was instructed as to the duty of the engineer to obey the above-named provisions of the law, if on reaching the blow post, the train was making a continuous passage across the highway crossing in the present instance, but that, if the engineer stopped the train at a point between the blow post nearest the crossing and the crossing itself, the duty of blowing through the whistle as prescribed above would not apply until starting towards the crossing from the point at which he had stopped, and from that point he would be required to blow, as indicated by the statute, in passing over the crossing and beyond to the next blow post. In making such charge the court inadvertently stated that the engineer would be required to blow continuously, whereas under the statute he is required to blow only at intervals of five seconds, but such error was harmful to the defendant rather than to the plaintiff. The only allegation of negligence not adjudicated in the previous decision by this court being that with reference to the approach of the train to the crossing, and the trial court not having...