Cent. Of Ga. Ry. Co v. Keating, s. 22007, 22008.

• Decision Date: 28 September 1932
• Docket Number: Nos. 22007, 22008.,s. 22007, 22008.
• Citation: 45 Ga.App. 811,165 S.E. 873
• Parties: CENTRAL OF GEORGIA RY. CO. v. KEATING (two cases).
• Court: Georgia Court of Appeals

45 Ga.App. 811

165 S.E. 873

CENTRAL OF GEORGIA RY. CO.

v.KEATING (two cases).

Nos. 22007, 22008.

Court of Appeals of Georgia,

Division No. 2.

Sept. 28, 1932.

Syllabus by the Court.

1. It was not error to reject the testimony of witnesses that a large automobile passed them about a mile from the scene of the accident, traveling in the direction thereof and at an excessive rate of speed, there being no evidence that it was the one being driven by the plaintiff, and there being evidence that there was another intersecting road coming into the highway on which the automobile was traveling.

2. It was not error to allow a witness to testify that in his opinion the plaintiff's automobile just tumbled off of the bridge; the witness properly stating the facts upon which he based his opinion.

3. Evidence of the existence of defects, or of a generally defective condition, in other portions of a structure than the part directly involved, in an action for damages on account of injury from a defect in the structure, is admissible, if therefrom the condition of that part at the time of the injury can be reasonably inferred.

4. It was not error to reject testimony that the witness saw children walking and sitting on the guard rails of the bridge in question prior to the accident, the witness stating that he did not know the year nor how long it was before the accident that he observed this.

5. The Act of August 23, 1927 (Ga. Laws 1927, p. 226), superseded and supplanted paragraph 2 of section 2 of the Act of August 15, 1921 (Ga. Laws 1921, pp. 255, 256).

6. In determining whether a railway company has exercised due care in the maintenance of a bridge over its tracks along a public highway, consideration should be given to the physical surroundings and the particular condition of the roadway approaching the bridge.

7. It would be negligence for the railway company to fail to keep the bridge in question and its approaches in a safe and suitable condition.

8. The instruction dealt with in the eighth division of the opinion, when considered with the entire charge, and particularly that portion of the charge immediately preceding it, was not erroneous. Burkhalter v. Nail, 171 Ga. 567, 156 S. E. 214; Sims v. Sims, 166 Ga. 462, 143 S. E. 381.

9. The court gave correct instructions as to the method of determining the amount of damages caused by the plaintiff's decreased earning power.

10. The full value of the life of the wife, under Civil Code 1910, § 4425, as amended by Laws 1924, p. 61, § 2, is the present value, and that is arrived at by determining from the evidence the gross value of her life and reducing this amount to its present cash value.

11. Upon proof as to a person's age, health, and the value of her services, the jury may estimate the value of her life, and reduce that value to its present cash value, by any method satisfactory to them which produces a definite result that is fair and reasonable and is authorized by the evidence. Standard Oil Co. v. Reagan, 15 Ga. App. 571 (5), 591, 84 S. E. 69.

12. In the absence of bias or prejudice, and where the amount of a verdict could easily have been arrived at under the evidence submitted, the verdict will not be set aside as being excessive.

13. A plea of pendency of another suit must be taken advantage of at the first term.

(a) A plaintiff may set out a cause of action in separate counts, so as to meet the possible phases of the evidence, and, in an action for a personal injury, no new and distinct cause of action is added by an amendment which contains a new count identical with the first count, except some slight changes in the description of the manner in which the injury occurred.

Error from City Court of Carrollton; J. J. Reese, Judge.

Two separate suits by J. B. Keating against the Central of Georgia Railway Company. Judgment in favor of the plaintiff in each case, and the defendant brings error.

Judgment affirmed in one case, and judgment reversed in the other case.

Goodrich & Cleveland, of Griffin, and Boy-kin & Boykin, of Carrollton, for plaintiff in error.

Willis Smith and Smith & Millican, all of Carrollton, for defendant in error.

SUTTON, J.

Keating brought two suits against the Central of Georgia Railway Company, one for personal injuries to himself and his personal property, and the other for the homicide of his wife, caused by the negligence of the defendant. Plaintiff and his wife were traveling in a southerly direction from Atlanta in an automobile towards Carrollton on a public highway of this state. The railroad of the defendant and this highway are almost parallel where the plaintiff and his wife were traveling. They reached a point where the road made a sudden turn directly east and crossed a bridge over the railroad, which bridge was a wooden structure constructed by the defendant. The plaintiff alleged that he was traveling at night and was not familiar with the road. He alleged that the bridge was defective, the sills and guard rails being rotten, and that it was not in proper repair or safe for travel. He further alleged that he approached the bridge at about thirty miles an hour, and that, when he reached a point about thirty feet from the bridge on the west side thereof, certain sand and gravel raked up in the center of the road, which the defendant had allowed to accumulate there, caused his automobile to swerve to the right and headed it towards the north side of the bridge.

He further alleged that, when he reached approximately the center of the bridge, he brought his car almost to a standstill, being near the guardrails of the bridge on the north side, when his automobile struck the rails, running about three or four miles an hour, and the rails were so defective and rotten that they gave way and caused his car to fall from the bridge to the ground in the railroad cut, instantly killing his wife, injuring and hurting him, and destroying his automobile. The plaintiff set up that it was the duty of the defendant to maintain this bridge in a safe and suitable condition, and that the injuries above stated were caused by its failure so to do. The defendant denied the material allegations of the petitions. The plaintiff introduced evidence tending to establish the allegations of his petitions. The jury returned a verdict for the plaintiff in each case. The defendant made separate motions for new trial, which the court overruled, and to these judgments the defendant excepted. The same questions are for decision in both cases, and the pleadings and the evidence in each were identical. We will deal with both cases in one opinion.

1. The court rejected the evidence of certain witnesses as to the speed of the plaintiff's automobile about a mile from the scene of the accident. These witnesses stated that they did not know what kind of car it was that passed them, but that they only knew that it was a big car. There was no evidence that there were no other roads crossing or running into this highway between the point where these witnesses stated a big car passed them and the point where the accident occurred. In fact, there was evidence of at least one other intersecting road. In these circumstances, we do not think that the court erred in excluding this evidence.

This case is distinguishable from the case of Reed v. Southern Railway Co., 37 Ga. App. 550 (5), 140 S. E. 921. In that case there was no doubt as to the identity of the train and there was no evidence as to any intersecting railroads. Furthermore, a train usually maintains an even rate of speed, and it might be said that the speed of a train, when once shown, continues to be the same for a short distance at least. Savannah, etc., Ry. Co. v. Flannagan, 82 Ga. 588, 9 S. E. 471, 14 Am. St. Rep. 183. However, it has been held in other jurisdictions that the fact that one is traveling in an automobile at a high rate of speed a short distance away from an accident is no logical or relevant evidence that he was going at that speed at the point of the accident. Stevens v. Potter, 209 Ky. 705, 273 S. W. 470.

2. A witness for the plaintiff testified that he was in the garage business, and that on the occasion of this wreck he went to the scene thereof in his wrecker. He further testified that he found the car right down under the bridge. This witness then went into details as to the condition of the plaintiff's automobile and the position in which it was found. He testified that he had had a great deal of experience in removing wrecked cars, that in his opinion the plaintiff's car just tumbled off the bridge, and that he never noticed any indications that the car had struck the east bank of the fill. This evidence was objected to by the defendant. In our opinion, this evidence was admissible, as the witness properly stated the facts upon which his opinion was based. The jury could draw their own conclusion from these facts' as to whether his opinion was correct or not.

3. It was not error for the court to allow a witness for the plaintiff to testify that the condition of the guard rails on the south of the bridge was rotten, and that you could pick the nails out with your hand.

Evidence of the existence of defects or of a general defective condition in other portions of a structure is admissible, if therefrom the condition of that portion directly involved at the time of the injury can be reasonably inferred. Emporia v. Kowalski. 66 Kan. 64, 71 P. 232; 45 C. J. 1247, § 811; and see Standard Cotton Mills v. Cheatham, 125 Ga. 649, 54 S. E. 650. The jury could have takeninto consideration the fact that the guard rail on the south side of the bridge was in a rotten condition, in determining whether or not the entire structure was in a defective condition. Standard Cotton Mills v. Cheatham, supra. There was evidence that the entire bridge was built out of the same character of timber and at the same time, and that no repairs had been made thereon.

4. The court refused to allow a witness for the defendant to...