Central of Georgia Ry. Co. v. Brower, 39287
| Decision Date | 22 June 1962 |
| Docket Number | No. 39287,No. 2,39287,2 |
| Citation | 127 S.E.2d 33,106 Ga.App. 340 |
| Parties | CENTRAL OF GEORGIA RAILWAY COMPANY v. S. E. BROWER |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. An opinion of a witness is inadmissible when the information upon which the opinion is based is not given. Code § 38-1708. This is true, even though the witness is an expert on some subjects, when the opinion testimony relates to a subject on which the witness is not qualified as an expert.
2. Every fact of circumstance serving to elucidate or throw light upon the issue being tried constitutes proper evidence in the case.
3. The court erred in admitting testimony relative to the distances required for a driver to bring a motor vehicle to a stop when being driven at various speeds, which testimony was based upon a certain speed chart that was not shown to be correct or placed in evidence.
4. An objection to the admission of evidence on the ground that it is irrelevant, immaterial and inadmissible is too general to constitute a good assignment of error, and such assignment of error does not raise a question for decision by this court.
5. The court did not err in its charge relative to the 'stop, look and listen' law.
6(a). Mere knowledge of the plaintiff of the existence of a railroad crossing is not necessarily a determining fact which would require a holding that the plaintiff failed to exercise ordinary care for his own safety when the automobile he was driving collided with the defendant's train which was using the crossing.
(b). When a judge undertakes to charge the law on any subject he must charge all of it upon that subject which is material and applicable to the case.
7. Although a witness may have no distinct and complete recollection of the details of a fact or facts occurring in the course and routine of his business, he may testify to his fixed and uniform habit in such cases and state what he did in accordance with that habit.
8. The charge upon emergency was not authorized by the evidence.
9. The special grounds which are not specifically referred to in the opinion do not show reversible error for any of the reasons assigned therein.
10. The court did not err in overruling the motion for judgment notwithstanding the verdict for reasons stated in the body of the opinion.
Stanley E. Brower brought an action against the Central of Georgia Railway Company for damages resulting from injuries he allegedly sustained in a collision between an automobile he was driving and the defendant's train. This case first appeared before this court in Central of Ga. R. Co. v. Brower, 102 Ga.App. 462, 116 S.E.2d 679. A workmen's compensation case between the plaintiff and his employer, which arose because of the collision, was before this court in Beck v. Brower, 101 Ga.App. 227, 113 S.E.2d 220.
After this court's decision on the demurrers, the case was tried, and the jury returned a verdict for the plaintiff in the amount of $13,405.05. The record before this court is voluminous, and therefore, we shall point out in substance only such parts of the evidence which we deem necessary for an understanding of the rulings here made.
The plaintiff, a taxi driver, received a call to go to a certain address at approximately 5:30 a. m. He left the taxi stand and drove down Madison Street, which intersects with the defendant's railroad tracks. The plaintiff's home was located approximately three blocks from this railroad crossing, and the plaintiff was familiar with the crossing. He had crossed it many times. The plaintiff testified that as he drove down Madison Street he came to a full stop as he approached the intersection of Madison Street and Flint Avenue. The next thing he remembered was when he 'woke up' in the hospital. The plaintiff testified that at the time of the collision the weather was misty in low areas; that his windshield wipers were on, and that he was driving at about 20 miles per hour.
Ross Creamer, a fellow employee of the plaintiff, testified that on the night the collision happened he left the taxi stand right after the plaintiff had left in response to a call; that the weather was heavily overcast, rainy and foggy, and that he had dimmed the lights and had the windshield wipers working on the car he was driving; that as he approached the railroad crossing on Monroe Street (a block away from the scene of this collision) he 'didn't see anything, [he] heard a train stopping and [he] knew something was in front of' him; he turned and applied the brakes on the car to keep from hitting the train and stopped 'within a car length.'
The evidence shows that the defendant was operating a train of 83 cars, and at the time of the collision, the train was moving at a speed of approximately 11 miles per hour. Other witnesses testified as to the weather conditions and the physical characteristics of the crossing. The evidence shows that at the intersection in question there was a 'blinking yellow light' which operates at all times; that the defendant placed no warnings at the crossing other than the 'blinking' light. Testimony was introduced to show the number of lights on the defendant's train and that a lighted fusee had been placed upon the 'cow catcher.'
Expert witnesses were called to testify as to the correctness of certain plats and diagrams showing distances and elevations of the streets and railroad tracks immediately surrounding the scene of the collision and showing the placement of street lights and warning signal lights. The evidence shows that the railroad track at this particular location is in the center of Roosevelt Avenue where it intersects with North Madison Street in the city of Albany.
There was medical testimony introduced relative to the injuries sustained by the plaintiff as a result of the collision.
Within the time allowed by law defendant filed a motion for a new trial and a motion for a judgment notwithstanding the verdict. Defendant later amended his motion for a new trial by adding numerous special grounds. Both motions were overruled by the court, and the defendant appealed assigning same as error.
Farkas, Landau & Davis, Edmund A. Landau, Jr., Albany, for plaintiff in error.
D. C. Campbell, Jr., H. G. Rawles, Burt & Burt, Albany, for defendant in error.
1. Steven A. Roos was called as a witness for the plaintiff and was qualified as a civil engineer and as an expert in that field. He testified as to the correctness of the measurements and elevations represented by certain lines on a plat of the scene where the collision occurred. Thereafther, the plaintiff introduced opinion testimony of this witness as to the effect of fog decreasing the visibility of one driving a car at night with headlights on. Plaintiff's counsel propounded the following questions:
The defendant objected to the questions and answers upon the ground that such answers would be conjecture, highly speculative, and a conclusion of the witness. In special ground 4 it assigned the admission in evidence of such testimony as being error.
The defendant's objection is well taken. This witness was not qualified as an expert upon this subject and his testimony along this line was certainly a conclusion (Code § 38-1708) and approached almost to the extent of commenting on the ultimate fact issue which was within the jury's exclusive domain, (see Green, Ga.Law of Evidence, § 113) and was testimony as to facts of common knowledge which every juryman would know. See Ga. R. & B. Co. v. Hicks, 95 Ga. 301, 22 S.E. 613; Farris v. Interstate Circuit Inc., 5 Cir., 116 F.2d 409; McCray v. State, 134 Ga. 416, 68 S.E. 62. See also, Green, Ga.Law of Evidence, § 111.
2. Movant contends that the court erred in admitting in evidence the testimony of a certain witness concerning the weather conditions at a railroad crossing one block away from the intersection where the collision in question occurred. The witness, a fellow employee of the plaintiff, testified that he drove down Monroe Street (which was one block away from the scene of the collision--Monroe Street runs parallel to Madison Street) toward the railroad crossing at the intersection of Monroe Street and Roosevelt Avenue; that the weather conditions were heavily overcast, misty and foggy; that as he approached the railroad crossing he did not see anything but he heard a train stopping and knew something was in front of him; that he turned and applied the brakes on his car to keep from hitting the train, and that his car came to a stop 'within a car length' of the train.
The basis of the objection is that the testimony related to an event between different parties than those in the present suit (viz., the defendant and the witness) and involved an occasion not connected with the one under investigation. However, this witness was testifying to the condition of the weather and visibility existing at or near the time of the collision and only one block away from the scene of the collision. He testified that a train (obviously the one which the plaintiff struck) was not seen by him as he approached the crossing because of the weather conditions, and we are of the opinion that his testimony was admissible as a circumstance to be considered by the jury regarding the...
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