Central of Georgia Ry. Co. v. Blackman

• Decision Date: 14 June 1910
• Docket Number: 2,303.
• Parties: CENTRAL OF GEORGIA RY. CO. v. BLACKMAN.
• Court: Georgia Court of Appeals

68 S.E. 339

7 Ga.App. 766

CENTRAL OF GEORGIA RY. CO. v. BLACKMAN.

No. 2,303.

Court of Appeals of Georgia

June 14, 1910

Syllabus by the Court.

It is a close and doubtful question as to whether a losing party in a jury trial can by direct bill of exceptions (and without the intervention of a motion for a new trial) bring up for review alleged errors committed on the trial, where it does not appear that the verdict was necessarily controlled by the alleged errors. The point is not decided.

A reversal will not be granted because the trial judge refused certain requests to charge, where the same matters are fully and fairly presented in the general charge.

Though the issue in the trial may present only a particular phase of a general legal principle which involves some things not directly pertinent to the case on trial, it is not improper for the court to state the general principle to the jury provided he instructs them as to its particular application and limits their investigation accordingly.

In an action by a railroad employé for injuries received through the alleged negligent act of a fellow servant, while it is true that the plaintiff must recover upon the particular negligence alleged, it is not error for the judge to charge the jury, in accordance with the statutes of this state as construed by the courts, that if the plaintiff shows that he was free from fault, and that he was injured by the alleged act of the fellow servant, it is to be presumed, until the contrary appears, that the defendant was negligent, and that upon such a state of facts the plaintiff is prima facie entitled to recover.

It is not error, in a negligence case, to instruct the jury (if the facts make the instruction appropriate) that the plaintiff may show the defendant's negligence from the very happening of the injurious act in question, provided that the most reasonable inference to be drawn from the fact of the thing's having happened as it did is that, if the defendant had not been negligent in the particulars alleged in the declaration, the thing would not so have happened.

If a plaintiff in a negligence case alleges a single specific act of negligence as the cause of his injury, he cannot recover without showing that that act was negligent and proximately contributed to the injury; but if he shows that act, and shows that it was not only negligent, but also that it materially and proximately contributed to his injury, he is not precluded from a recovery because other unalleged acts of the defendant (whether negligent or not) may have concurred with the act alleged in bringing about the injury.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by R. C. Blackman against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Lawton & Cunningham, for plaintiff in error.

Osborne & Lawrence, for defendant in error.

POWELL J.

Blackman sued the railroad company for personal injuries. He was a boiler maker in the defendant's shops. A Pintsch gas tank, such as is used to supply gas on passenger cars, had become dented in a wreck. The foreman ordered Blackman to repair it by a process which he prescribed, and recommended as being safe, though it was a new process so far as the shop in question was concerned. Blackman had no special information on the subject. He had never had any previous experience in the repair of such tanks. The process he was directed to use was that he should couple the tank to the compressed air pipes in use in the shops, and then heat the dented portion, with the view that, as the heat softened the metal in the dent, the pressure of the air would cause this part of the tank to come back into symmetry with the rest of its contour. The plaintiff coupled the tank to the air hose built his fire under the dent, and turned on the compressed air till the gauge which he had placed in the pipe line showed a pressure of 20 pounds. The foreman came up, and seeing that the plaintiff was using only 20 pounds' pressure, opened wider the valve, which turned on the air telling the plaintiff not to be afraid, that the tank would stand a pressure of 250 pounds. When the foreman thus opened the valve, the pressure, as shown on the gauge, rose rapidly to 60 pounds. The indicator showed about this figure when the plaintiff last looked at the gauge, and a moment later the tank burst with a violent explosion. The plaintiff was injured; but the extent of his injuries need not be set forth, as there is no complaint as to the amount of the verdict.

The petition charged that the defendant knew (actually or constructively) that the tank was likely to explode when a high pressure of air was put upon it; that the plaintiff was free from fault, was inexperienced in the particular kind of work, was excusably ignorant of the dangers attendant on doing the work, and was relying upon the express assurances and directions of the foreman that the work could be safely done; and that he could not have avoided the injury by any reasonable degree of care. He made four allegations of negligence: "(a) In putting plaintiff to work on said gas tank without giving him proper warning and instruction as to the danger of said work and the proper means of carrying it on; (b) in misinforming him as to the amount of pressure said gas tank would bear; (c) in turning on said compressed air, and thereby increasing the pressure to a highly dangerous point, thereby causing said explosion; (d) in causing the explosion of said tank without warning or notifying plaintiff that it was likely to explode." The defendant brings the case to this court by direct bill of exceptions, having filed no motion for new trial. No point is made as to the legal sufficiency of the evidence to sustain the verdict. There is a general exception to the final judgment, but no assignment of error thereon. The plaintiff in error relies solely on seven exceptions to the charge of the court, which will be discussed in order.

The defendant in error has moved to dismiss the writ of error, on the ground that a direct bill of exceptions will not lie in such a case, that the alleged errors were not such as necessarily to have controlled the verdict, and that a motion for new trial was essential to the raising of the points complained of. The plaintiff in error says that the alleged errors are properly for consideration, though they do not control the verdict, and that there should be a reversal if the errors were prejudicial, though not necessarily controlling within the purview of the act of 1898 (Acts 1898 p. 92). Logically speaking, this point ought to be decided at the outset, and if we were at all sure that we knew how to decide it correctly, we would shape this opinion accordingly; but we have decided not to decide it, for, upon looking at the exceptions, we find that, though they present several right difficult questions, it is easier to decide them than it is to decide the point of practice, and the result we are reaching makes a decision on the practice question immaterial from a practical standpoint. The profession will probably be willing to pardon this confessed judicial "dodging," if they will only undertake to form an opinion on the question of practice involved, in the light of the following decisions: Ocean Steamship Co. v. Hamilton, 112 Ga. 901, 38 S.E. 204; Smith v. Smith, 112 Ga. 351, 37 S.E. 407; Ray v. Morgan, 112 Ga. 923, 38 S.E. 335; Darien Bank v. Clarke L. Co., 112 Ga. 947, 38 S.E. 363; Cable Co. v. Parantha, 118 Ga. 913, 45 S.E. 787; Henderson v. State, 123 Ga. 739, 51 S.E. 764; Anderson v. Wyche, 126 Ga....