Central of Georgia Ry. Co. v. Hester

• Decision Date: 17 May 1956
• Docket Number: No. 36201,No. 2,36201,2
• Citation: 94 S.E.2d 124,94 Ga.App. 226
• Parties: CENTRAL OF GEORGIA RAILWAY COMPANY v. Joe HESTER
• Court: Georgia Court of Appeals

Page 124

94 S.E.2d 124

94 Ga.App. 226

CENTRAL OF GEORGIA RAILWAY COMPANY v. Joe HESTER.

No. 36201.

Court of Appeals of Georgia, Division No. 2.

May 17, 1956.

Rehearing Denied July 17, 1956.

Syllabus by the Court

'The term 'burden of proof' has a dual meaning: (a) Generally, the burden of proof rests where the pleadings place it; this is recognized as the burden of pleadings, and remains thus placed throughout the trial. (b) The burden of testimony or evidence is shifting, and, during the progress of a trial may alternately shift on facts or issues from one party to the other. As to the burden of pleadings, the trial court has no discretion; it is a matter of law. As to the burden of testimony or evidence, he has a discretion to determine whether or not the evidence produced, together with attending rules of presumption and procedure, under the particular case, has shifted it.'

Joe Hester brought suit against the Central of Georgia Railway Company for damages to an automobile trailer. The trial resulted in a verdict for the plaintiff. The defendant filed a motion for new trial, which was later amended. The court denied the motion for new trial and it is to this judgment that error is assigned here.

The petition alleges that on the named date the trailer was being driven by an employee of the plaintiff, one Ralph Fowler. Paragraph 5 alleges that as Fowler was crossing the tracks of the defendant he was run into and struck by a switch engine belonging to the defendant, being at the time operated by one of the agents and employees of the defendant, such person being on the business of the defendant and acting within the scope of his employment at the time.

Paragraph 6, as amended, alleges that as Fowler drove the trailer onto the public crossing he was forced to a standstill because the cars immediately in front of him were standing in the line of traffic preventing him from completely crossing the public crossing and the said railroad tracks. Paragraph 7 alleges that as Fowler remained at a standstill on the crossing he was run into and struck by a switch engine. Paragraph 8 alleges that at the time of the collision Fowler had almost crossed the tracks but the rear of his trailer extended squarely over the tracks on which the switch engine was proceeding. Paragraph 9 alleges that the injury and damage was proximately caused by the negligence of the defendant.

Paragraph 10 alleges that the defendant was guilty of negligence per se in failing to place and keep at the grade crossing a watchman or flagman and by not keeping gates or a signal device sufficient to protect the public from danger and that such failure was contrary to a valid ordinance of the City of Atlanta as follows: 'It shall be the duty of every person operating trains across grade crossings in the city to provide at each such grade crossing complete public safety from danger from approaching trains for all persons using the streets at such crossings. For this purpose, persons operating trains, or having control of the tracks, shall place and keep at each such grade crossing at all times a watchman or flagman, or shall install, operate and maintain standard automatic gates or signaling devices sufficient to protect the public fully from the danger of any approaching train.'

Paragraph 11, as amended, alleges: Subsection 1: That the defendant did not have the switch engine under control as it approached the crossing. Subsection 2: That brakes were not properly applied so as to slow down or stop the engine before striking the trailer. Subsection 4: That the defendant failed to place signal lights, gates, flagmen, watchmen or other person at such crossing to warn the persons driving thereon of the approach of the defendant's engine to said crossing. Subsection 5, as amended: That the defendant failed to keep a constant and vigilant watch along the tracks of said engine while approaching the crossing in violation of the laws of the State of Georgia. Subsection 6: That the defendant negligently and carelessly ran the said engine into the side of the plaintiff's trailer.

Paragraph 12 of the petition alleges that the tracks at the point where the collision occurred were straight and there was nothing to prevent the employee who was operating the said engine from seeing the said trailer. Paragraph 13, as amended, alleges that immediately prior to said collision the trailer had a reasonable market value of $7,000 and that immediately after the collision the reasonable market value was only $2,500, said decrease in market value being caused by the negligence of the defendant. Paragraph 14, as amended, sets up the particulars in which the trailer was damaged. Paragraph 15 alleges that the damage was proximately caused by the negligence of the defendant. Paragraph 16 asks for judgment in the amount of $4,500. Paragraph 17, added by amendment, alleges that the operator of the defendant's engine saw or in the exercise of ordinary care should have seen the trailer as it was approaching the crossing. Paragraph 18, added by amendment, alleges that the defendant was negligent in failing to warn the plaintiff's driver that his switch engine was proceeding along said tracks although the plaintiff's driver was in the act of crossing the said tracks at the public crossing before the switch engine arrived at the crossing and that the plaintiff's trailer had just stopped when it was struck by the defendant's engine.

The answer of the defendant denies that the plaintiff owned a trailer with a market value of $6,000; neither admits nor denies that Fowler was operating the trailer; neither admits nor denies the allegations of paragraph 5 except that the defendant does admit that there was a collision, as alleged, between defendant's engine operated by one of his agents and employees, acting within the scope of his employment, and the trailer being driven by a person who gave his name as Ralph Fowler. The defendant denied paragraphs 6, 7, 8, 9, 10 and 11 of the petition and admits paragraph 12 of the petition and in paragraph 8 the defendant says that its engineer saw the trailer when it was approximately 100 feet south of the crossing and saw the trailer make a sudden turn onto the crossing immediately ahead of and in the path of defendant's engine, without checking the speed of the trailer and without giving the crew of the engine any notice that said trailer would turn away from its path and onto the railroad crossing; that the driver of the trailer had an equal opportunity of seeing and discovering the approach of the engine if the driver had been looking ahead in the direction in which he was going, or had reduced the speed of said trailer just before or at the time he made the turn onto the crossing.

The defendant denies the allegations of paragraphs 13, 14, 15 and 16 and in paragraph 10 of the answer says that whatever injuries and damages the plaintiff may have sustained as a result of said collision were brought about by the negligence of the driver of the trailer in his failure to exercise ordinary care in driving the trailer upon the crossing directly in the path of the approaching engine; that had the driver exercised the diligence and care of an ordinary, prudent man in the same or similar circumstances, said driver would have seen, heard and discovered the presence of said engine approaching the crossing before driving the trailer upon the tracks, and, accordingly, the plaintiff is not legally entitled to recover any damages whatsoever from the defendant. In this connection the defendant further answering says that its engine was approaching the crossing at a speed of between 12 and 15 miles per hour, that its bell was constantly tolling and that its horn was being blown and that there was no vehicular traffic on the crossing until said trailer without any warning or notice whatsoever, made a sudden turn from its line of drive onto the crossing directly into the path of the defendant's engine and at the same time increasing rather than decreasing or stopping its speed, and the driver of said trailer failed to heed any of the warnings and drove the trailer upon the crossing directly upon the track and in the path of the engine.

The evidence shows substantially as follows: Earl Thomas, sworn for the plaintiff, testified that he, as service manager of Trailmobile, Inc., was familiar with the trailer involved in the collision; that he saw the trailer an hour and a half before the collision, having worked on sealing the rear doors of the trailer; that at that time the trailer was in good shape, nothing drastically wrong; that in his opinion before the wreck the reasonable market value of the trailer was around $7,000 and that after the wreck the reasonable market value was around $2,500. On cross-examination he testified that he didn't know when the trailer was purchased; that a new trailer of that model would have cost approximately $13,000 with everything on it; that the average life of a trailer of this type was from 7 to 10 years and that the value depreciated from year to year; that after the wreck his department made repairs to the trailer at a cost of $3,050. On redirect examination he testified that he based his opinion as to the value of the trailer before and after the collision on his experience on other trailers of the same make and model.

The plaintiff, being sworn in his own behalf, testified that he operated trucks and owned the trailer involved in the collision in question; that he bought the trailer in 1950; that he paid $9,000 for it; that it was in good condition before the collision and in his opinion had a reasonable market value of around $7,000 or $7,500; that he had bought several trailers and was familiar with what they cost and their value; that after the wreck the reasonable market value of the trailer was $5,600 after it had been repaired and before it was repaired from $2,500 to $3,000; that he sold the trailer...