Central of Georgia Ry. Co. v. Dumas
| Decision Date | 03 October 1931 |
| Docket Number | 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.
In action by driver for injuries, responses of occupants of automobile, in answer to driver's question, that they could see nothing at crossing, held admissible (Civ Code 1910, § 5763).
Instruction that extrajudicial statement was admitted only to prove that statement was made and that plaintiff acted thereon held not objectionable as expressing opinion.
Testimony that plaintiff left hospital because another victim of accident had died upon bed occupied by plaintiff held admissible in action for injuries.
Ordinance requiring guards on rear platform of trains moved backward over street crossing held applicable to train containing no rear platform.
Whether presence of two switchmen upon rear of train was substantial compliance with ordinance requiring guard in backing train over street crossing held properly submitted to jury.
Ordinance requiring watchman at street crossings having several tracks held not void as burdening interstate commerce or denying due process or imposing unnecessary burden.
Instruction relative to ordinance requiring watchman at crossing held not erroneous, where application thereof was left to jury.
Evidence in crossing collision case warranted instruction on railroad's violation of ordinance limiting speed of train.
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.
Instruction as to railroad's failure to maintain safety device held not error under evidence in crossing collision case.
Railroad's failure to keep crossings and approaches in good order constitutes negligence per se (Civ. Code 1910, § § 2673 2674).
Requirement that railroad crossing extend as far as necessary to get on and off crossing conveniently, applies to cities (Civ. Code 1910, § 2674).
Court's failure to define "spirit of road laws" held not error, in absence of special request (Civ. Code 1910, § 2673).
Submission to jury of question whether railroad had complied with spirit of road law with respect to crossing in question held not error, where no request for definition was made (Civ. Code 1910, § 2673).
Instruction relative to plaintiff's duty to avoid negligence of defendant railroad held not erroneous for failure to instruct on duty of person in place of known danger (Civ. Code 1910, § 4426).
Instruction that plaintiff sued for loss of time and expenses, if he had any, held not harmful to defendant, though there was no evidence as to plaintiff's expenses.
Instruction relative to determining damage for permanent injury held not erroneous for failure to instruct with reference to damage if injury was not permanent.
Correct statement embraced in charge is not erroneous because court failed in same connection to give other appropriate instructions.
Jury could infer that injuries were permanent, though there was no direct evidence or opinion evidence supporting that view.
Instruction on damages for loss of earning capacity held not erroneous where court elsewhere gave instruction on other causes decreasing earnings.
Charge authorizing jury to reduce to present cash value sum representing impairment of plaintiff's earning capacity held not objectionable, in view of other instructions.
Exception to charge as failing to give measure of damages under certain circumstances held incomplete for failure to specify rule applicable.
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.
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 gestæ, 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 materialto 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...
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