Cent. Of Ga. Ry. Co v. Hartley
| Decision Date | 07 April 1920 |
| Docket Number | (No, 10757.) |
| Parties | CENTRAL OF GEORGIA RY. CO. v. HARTLEY. |
| Court | Georgia Court of Appeals |
(Syllabus by Editorial Staff.)
Error from Superior Court, Washington County; R. N. Hardeman, Judge.
Action by A, E. Hartley against the Central of Georgia Railway Company. Verdict and judgment for plaintiff, motion for new trial denied, and defendant brings error. Affirmed.
Evans & Evans and W. M. Goodwin, all of Sandersville, and Lovett & Powell, of Sylvania, for plaintiff in error.
R. R. Arnold, of Atlanta, and Jordan & Harris, of Sandersville, for defendant in error.
JENKINS, P. J. Hartley sought to recover damages for alleged personal injuries claimed to have been inflicted by the operation of the defendant's cars while he was driving a buggy over a public street and railway crossing in the city of Tennille. Various charges of negligence, which it is alleged occasioned the injury, are brought against the defendant, including a violation of the "blow post law" then of force (Park's Ann. Civ. Code, § 2675), an allegation that the defendant's train was being moved at the time and place of the accident at an excessive rate of speed, to wit, 25 or 30 miles per hour, failure to keep a proper lookout, failure to give a proper signal, and a violation of a valid municipal ordinance limiting the speed of trains within said city to 8 miles per hour. The defendant denied each of the acts of negligence charged against it, and further contended that the proximate cause of the injury was the negligence of the plaintiff himself. It also demurred to the petition, both generally and specially, and to the overruling of the demurrers exceptions are taken. The evidence was in sharp conflict upon practically every issue raised by the petition and the answer. The jury found for the plaintiff in the sum of $7,500, and the refusal of the trial judge to grant a new trial is complained of. Held:
1. The court did not err in overruling the general demurrer to the petition. Ordinarily issues relating to negligence, including contributory negligence—that is, negligence on the part of the defendant as well as on the part of the plaintiff—are questions which lie peculiarly within the province of the jury to determine. As a general rule, not only is it incumbent upon the jury to say whether the particular conduct charged against the defendant is proved, but, except as to allegations relating to negligence per se, it is their further duty to determine whether or not such acts, if proved, were negligent; and, if so, it then becomes their final duty to solve any issue made as to whether or not such proved acts of negligence on the part of the defendant constituted the proximate cause of the injury. While it is true that, where a petition indisputably shows on its face that the plaintiff is not entitled to recover, and the question is made by general demurrer, it is the duty of the court to dismiss the action, still the application of this rule cannot properly be invoked except in cases so plain as will in no wise admit of a reasonable contrary interpretation. Harris v. Central Railroad, 78 Ga. 525, 536, 3 S. E. 355; Central of Georgia Railway Co. v. Larsen, 19 Ga. App. 413, 417, 91 S. E. 517 (1); Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259, 260 (8), 58 S. E. 249.
2. The court did not err in overruling the special demurrer to the petition.
(a) The petition showed that a certain engine and cab were left standing upon the defendant's side tracks near the crossing, so as to partially obstruct the petitioner's view of the approaching train. The fact thus alleged is not charged by the petition, as amended, to be an act of negligence on the defendant's part, but is stated merely as inducement and explanation, descriptive of the locality and environment of the injury. See Southern Railway Co. v. Grizzle, 124 Ga. 735 (4), 740, 53 S. E. 244, 110 Am. St. Rep. 191. Since it is not necessary to set forth and describe in detail the whole environment relating to the transaction at the time of the injury in order to admit evidence of the same for the purpose of showing how the alleged negligence of the defendant occasioned the injury (Atlanta Street Railroad Co. v. Walker, 93 Ga. 462, 463, 464, 21 S. E. 48), the defendant could not properly complain that the ownership of the cab and engine and their exact location and their distances from the crossing were not precisely set forth in the petition.
(b) The remaining grounds of the special demurrer to the petition are without merit, and are not specifically argued in the brief of counsel for the plaintiff in error.
3. The court did not abuse its discretion iu overruling the defendant's motion for a continuance.
(a) The defendant's claim agent, who swore that it was his duty to prepare the evidence for the defendant, testified on the motion for continuance that he had had a conversation with one Lanigan soon after the accident had occurred, about 18 months previously; that Lanigan, while not present at the time of the alleged injury, professed to have come upon the scene a few moments thereafter; that he had then noted the position of the engine and cab standing upon the side track; that there was nothing to obstruct a view of the approaching train from one entering upon the crossing; that he had made certain measurements showing the distance of the rear end of the train from the crossing over which it had passed; that the absent witness, who was an employe of an allied railway company, had at that time promised to attend court without a subpoena;that he had recently discovered that the witness had removed from the state, and had lately refused to attend the court; that no subpoena had been issued for him. There was a counter showing to the effect that the absent witness had moved from the county about 4 months previously. The record shows that this evidence related to facts as to environment and distances about which there was practically no dispute, that an expert civil engineer testified for the defendant concerning these facts, and that the defendant put in evidence a detailed map or drawing definitely outlining the entire situation and locality. See Civil Code 1910, §§ 5715, 5721; Moon v. Wright, 12 Ga. App. 659, 660, 78 S. E. 141 (5); Macon & Birmingham Railway Co. v. Anderson, 121 Ga. 666, 49 S. E. 791 (4).
4. While rulings have been made to the effect that in a case such as this a plaintiff cannot prove, by a general statement, the amount of his damage (McCrary v. Pritchard, 119 Ga. 876, 47 S. E. 341; Foote & Dalies Co. v. Malony, 115 Ga. 985, 987, 42 S. E. 413 [3]; Smith v. Eubanks, 72 Ga....
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