Brunswick & W.R. Co. v. Wiggins
| Decision Date | 19 July 1901 |
| Citation | 39 S.E. 551,113 Ga. 842 |
| Parties | BRUNSWICK & W. R. CO. v. WIGGINS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. While a jury trying a case should give to the evidence of a witness only the weight to which it is, in their opinion entitled, yet they cannot, in the determination of the issues involved, because of the fact that a particular witness was in the employ of one of the parties, arbitrarily disregard his testimony, and a proper request to (in effect) so charge should not have been refused.
2. To entitle the defendant to the opening and conclusion of the argument in the trial of a case arising ex delicto, when the act complained of was not one which, under the law, could be justified, it is necessary that the defendant by proper pleadings admit, not only the commission of the act, which it is alleged was wrongful, but also such other facts as would entitle the plaintiff to have a verdict, without proof, for the amount claimed in the petition.
3. In the trial of an action brought to recover damages against a railroad company for injuries sustained by the running and operation of a train of cars, it was error to charge in such manner as to convey to the jury the impression that, if they should believe that both the company and the person injured were equally negligent, the plaintiff could recover.
4. In an action instituted by a widow for the homicide of her husband, caused by the negligent operation of a train of cars by a railroad company, evidence going to show that the deceased, at the time he was killed, left no estate or property, was inadmissible.
Error from superior court, Berrien county; A. H. Hansell, Judge.
Action by Ida Wiggins against the Brunswick & Western Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.
D. H Pope, for plaintiff in error.
W. M Hammond and L. E. Lastinger, for defendant in error.
An action was instituted by the defendant in error against the railroad company to recover damages for the homicide of her husband, which she alleged was occasioned by the operation of a train of cars over defendant's railroad at a public crossing. The evidence relied on by the plaintiff in the court below as a basis of recovery was substantially as follows: Robinson, the husband of the plaintiff, was a watchman at a sawmill located at a point near the railroad. He was 54 years old at the time he was killed, was earning $30 per month, and was in good health. Among other things, it was his duty to fire up a tramway engine on the south side of defendant's road, near where he was killed, and to look after a lot of mules, which were stabled on the north side of the railroad. The public road crosses the railroad in going from the mill to where the tramway engine was stationed. Usually, the trains of defendant's railroad stopped at that crossing. At the time of his death the deceased had no property or estate other than his daily and monthly wages. Very early in the morning on which he was killed the deceased was at the mill, a few minutes before the train was to pass. When the train which killed Robinson approached the crossing the bell on the engine was not tolled, nor the whistle blown, but the train ran over the crossing at a speed of from 30 to 40 miles an hour, and stopped some distance beyond the crossing to put off a passenger at that station. Then it was discovered that a man, who proved to be the husband, had been struck by the train on or near the crossing. The dead body was found on the south side of the railroad, and about 30 feet from the crossing. The track was straight for a considerable distance from the crossing, and there was nothing to prevent the deceased from seeing the train after he had gotten within 18 feet of the side track. The Carlisle mortality tables were introduced. The engineer testified in behalf of the company to the following effect: The station near which defendant's husband was killed was a flag station. After he sounded the road-crossing signals he got the signal from the conductor to stop. He saw a lamp in the hands of some one, 2 or 3 feet from the crossing, when the locomotive was 75 or 100 yards distant. When he had gotten within one or two car lengths of the crossing he saw that the lamp was held by some one who attempted to cross the track in front of the engine, which was running at about 20 miles an hour. He stopped the train about 125 yards from that point, and backed up near the crossing, where the body of the deceased was found. Usually the train stopped on the crossing. This occurred between 3 and 4 o'clock in the morning. The bell was rung, and the speed of the train reduced from 35 or 40 miles to about 20 miles per hour at the crossing. He was looking forward, and first saw the light when he was about 100 yards distant, and was checking the speed of his train. The deceased attempted to run across in front of the engine. A man standing at the crossing could have seen the train a mile and a half. When he first saw the light it was 8 or 10 feet from the track, and it appeared that the person holding it ran from that point in front of the engine. The fireman also testified for defendant as follows: He was on the engine that killed the deceased. As the train approached the station he was ringing the bell. He saw a lamp held by some one going down to the track from the mill on the north side. It remained stationary until just before the train reached the crossing, when the man holding the lamp stepped on the track in front of the engine. The whistle was sounded for the crossing at the blow post. Witness saw the light of the lamp as it was brought down to the side of the road, as if a person was walking with it. He first saw it when the engine was at the blow post.
The bell was rung until the crossing was passed, and just as the man holding the lamp (who was the deceased) stepped in front of the engine the pilot of the locomotive struck him, and threw him on the other side. The engineer then said that he thought he had killed the watchman. The train stopped, and then backed, and the engineer went back. "No alarm was given to the engineer by me when the man holding the light was first discovered, because I thought he was going to wave down the train, but the light made no signal to stop." On this evidence the jury returned a verdict for the plaintiff for $1,500. Defendant made a motion for a new trial, which was overruled, and it excepted. Other grounds of the motion for a new trial than those herein specifically considered and passed on allege that the trial judge erred in the rulings therein set out. After having given these careful consideration, we are of the opinion that none of them presents sufficient legal cause for the reversal of the judgment and the grant of a new trial. While some of them are subject to criticism, the causes of error alleged do not have such a material bearing on the rights of the plaintiff in error as of themselves to work a reversal.
1. One of the grounds of alleged error is that the trial judge refused, on a proper request, to charge the jury that the evidence of persons in the employment of the railroad company, in the absence of anything to discredit or contradict such evidence, cannot be arbitrarily disregarded. Undoubtedly, this is a sound proposition of law. The jury cannot arbitrarily disregard the evidence of any witness which is not contradicted or discredited by other evidence or circumstances. The jury should regard the testimony of every witness sworn. They are not obliged to believe it, but it is their duty to give to the evidence of witnesses the weight to which in their opinion, as conscientious men seeking the truth, they believe it is entitled; but the employment or business of a witness affords no reason why this evidence should arbitrarily or without reason be disregarded. Railroad Co. v. Beason, 112 Ga. 553, 37 S.E. 863; Railroad Co. v. Wall, 80 Ga. 202, 7 S.E. 639. It is urged that, in view of the violent and unwarranted attack made by plaintiff's counsel on railroads generally and the witnesses of the railroad in this case as such, the request was called for as a matter of justice. This may be so. Certainly, such attack, if made, was, to say the least, improper under the evidence in this case, but we cannot consider the refusal to charge in the light of such an attack, because no question concerning it was made before the trial judge and passed on by him, nor do the details of it appear in the record. If it were otherwise, it is possible that the fact that it was unwarrantably made might call for a ruling which would reverse the judgment on that ground; but in any event, as a matter of law, the refusal to give the charge requested was error.
2. For the purpose of securing the opening and conclusion in the argument of the case before the jury, the defendant proposed to amend its plea by admitting that the "petitioner's husband was killed by a locomotive engine of the defendant, which was at the time running at the rate of from 20 to 25 miles an hour over a public crossing that the deceased was of the age alleged in the petition, and that he was in good health; and that the defendant assumed the burden." This amendment was rejected by the trial judge as being insufficient to change the burden of proof, and to give the defendant the right to open and conclude the argument, and, in our opinion, properly. The question of the right of the defendant to assume the burden of proof, and thus secure the opening and conclusion of the argument before the jury, is, and has been for many years, a much vexed one. Our Civil Code (section 5160) declares: "The burden of proof generally lies upon the party asserting or affirming a fact, and to the existence of whose case or defense the...
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