Cent. Of Ga. Ry. Co v. Dumas
| Decision Date | 03 October 1931 |
| Docket Number | No. 21149.,21149. |
| Citation | 160 S.E. 814,44 Ga.App. 152 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. DUMAS. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Though the opinion evidence as to speed of train may have been undisputed that train was not being operated at over fifteen miles an hour, the jury could have inferred the contrary from the evidence as to the distance the train ran after the automobile was hit, and from other circumstances introduced in evidence.
Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.
Action by J. S. Dumas against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Harris, Harris & Popper, of Macon, for plaintiff in error.
Smith & Smith and Geo. A. Pindar, all of Macon, for defendant in error.
Syllabus Opinion by the Court.
1. Where a driver of an automobile, before going upon a railroad track at a crossing, asks the occupants of the automobile if the way is clear, the responses by the occupants that they can see nothing were, upon the trial of the driver's case for damages against the railroad company for running into him at the crossing, properly admissible in evidence as part of the res gestae, and as illustrating the question of the driver's negligence, and as showing the circumstances under which he acted at the time. Civil Code 1910, § 5763; Atlanta, etc., Railway Co. v. Bagwell, 107 Ga. 157, 33 S. E. 191; Moss v. Moss, 147 Ga. 311 (3), 93 S. E. 875; Louisville & Nashville R. R. Co. v. Studdard, 34 Ga. App. 570 (6), 130 S. E. 532. A statement by the court to the jury, when admitting such testimony, that it was not admitted "for the purpose of proving the thing said, but only proving this thing was said and the party acted upon their statement, whether it is true or not, it does not prove the truth of what was said but upon what the plaintiff acted, " was not subject to the objection that the court, in making the statement, expressed the opinion that the plaintiff acted upon the alleged statements.
2. It was relevant and material to the plaintiff's case to show that he left the hospital in which he was confined after being injured before he had sufficiently recovered from his injuries. Therefore the testimony of the plaintiff that, while in the hospital, he ascertained that one of the occupants of the automobile had died upon the bed upon which the plaintiff was lying, and he could not for that reason remain in the hospital, and that he requested to be allowed to go home, was admissible to show why the plaintiff left the hospital, and was not objectionable in that it injected into the case matter respecting the injuries of another person growing out of the same transaction, where the court expressly instructed the jury that the evidence was admitted for the purpose of accounting for the plaintiff's nervous condition "as the plaintiff contends."
3. An ordinance of a city, making it "unlawful to move any train or car backward over any street crossing without having a guard placed on the rear platform furnished with proper means of giving an alarm or notice of the approach of such train or car in this manner, " was not inadmissible upon the ground that it had no application to a train or car which was being run backward over a street crossing, and which contained no rear platform. The ordinance, properly construed, makes it unlawful to move any train or car backward over a street crossing, without a guard upon the rear of the train. It was not error prejudicial to the defendant, upon the ground that the ordinance was inapplicable and unreasonable, for the court to submit to the jury as an issue of fact the question as to whether the presence of the two switchmen on the rear of the train as it was backing was a substantial compliance by the defendant with the ordinance.
4. It was not error, upon the ground that the ordinance was unreasonable and void and "imposed upon the defendant a burden in interstate commerce, " and as depriving the defendant of property without due process of law, and as imposing a burden upon the railroad without any necessity therefor, for the court to admit in evidence an ordinance of the city requiring railroad companies to maintain continuously a watchman on duty at a street crossing having thereon more than one track, and in charging the jury that it was the contention of the plaintiff that at the time of his injury the railroad company was violating this ordinance in not having a watchman at the crossing which was traversed with more than one track, where there was more than one track on the crossing, and the court instructed the jury that they could consider whether the ordinance was reasonable and applicable to the time and place, and that they could consider whether, on account of the special local conditions and surroundings, the ordinance would or would not reasonably apply to the crossing upon which the plaintiff was injured. City of Acworth v. W. & A. Railroad, 159 Ga. 610 (4), 126 S.E. 454.
5. Although there may be no direct evidence that the speed of the train was in excess of fifteen miles an hour, and although the evidence as to witnesses' opinion as to the speed of the train may have been undisputed that the train was not being operated at a speed in excess of fifteen miles per hour, it was not error for the court to give in charge the contention of the plaintiff that the defendant was negligent in violating an ordinance of the city prohibiting the running of trains through or over any part of the city at a rate of speed greater than fifteen miles an hour, upon the ground that there was no evidence from which the jury could find that the train was being operated at a speed in excess of fifteen miles an hour. The jury could have inferred from the evidence as to the distance the train ran after the automobile was hit, and from the other circumstances introduced in evidence, and by disregarding the opinion testimony which they were not bound to accept, that the train at the time was being operated at a rate of speed in excess of fifteen miles an hour.
6. It appearing from the evidence that the crossing was on a public street of a city and many people crossed there, it was not error prejudicial to the defendant for the court to charge the jury that one of the contentions of the plaintiff was that, although the crossing was on a public street of a large city where many people were constantly crossing, the defendant maintained no kind of device or means of guarding or warning the people against going upon the crossing while trains were approaching. White v. Knapp, 31 Ga. App. 344 (7a), 120 S. E. 796.
7. The charge of the court as to the law with reference to the duty resting upon a railroad company to keep the railroad crossings and the approaches thereto in good order as required in section 2673 and 2674 of the Civil Code of 1910, that a violation by a railroad company of the law as laid down in these Code sections was negligence per se, was not error. A failure of a railroad company to comply with the duty imposed upon it by law with reference to the construction of its tracks at street crossings is negligence as a matter of law. Lamb v. Robinson, 144 Ga. 334, 87 S. E. 17.
8. The law as laid down in section 2674 of the Civil Code of 1910, with reference to the duty of a railroad company to keep in good order the public roads at railroad crossings, provides that the crossings which the railroad is to thus keep in good order shall extend "for as many feet beyond, each way, as is necessary for a traveler to get on and off the crossing safely and conveniently." This applies in cities. Western & A. R. R. v. Atlanta, 74 Ga. 774; Atlanta & West Point R. R. Co. v. City of Atlanta, 156 Ga. 251 (6). 119 S. E. 712. Under the evidence as adduced the jury could have...
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