Central of Georgia Ry. Co. v. Mote

• Decision Date: 24 July 1908
• Citation: 62 S.E. 164,131 Ga. 166
• Parties: CENTRAL OF GEORGIA RY. CO. v. MOTE.
• Court: Georgia Supreme Court

62 S.E. 164

131 Ga. 166

CENTRAL OF GEORGIA RY. CO. v. MOTE.

Supreme Court of Georgia

July 24, 1908

Syllabus by the Court.

While a trial judge may, within the restrictions prescribed by Civ Code 1895, § 5331, direct a verdict, this court will in no case reverse a trial court for refusing to do so.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3846.]

Where in a suit for personal injuries against a railroad company the damages were laid at $20,000, and the evidence was sufficient to authorize a verdict of $10,000, and the jury returned a verdict: "We, jury, find for the plaintiff the sum of ten thousand (10,000.00) and cost of suit"-such verdict, where nothing otherwise appears will be construed to be a verdict for $10,000, and the judgment thereon for $10,000 should not be set aside on the ground that it was not authorized by the verdict.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 786.]

In a suit for personal injuries against a railroad company, where the negligence was alleged to be due to the use of an unsafe bolt, without proper inspection, which was visible only from under the running board of the engine, and it appeared from the testimony of the plaintiff, who was under no duty of inspection, that, before the commencement of the trip on which he was injured, he saw the bolt in question, and it appeared to be in proper place and condition, it was not sufficient cause for the grant of a new trial that the plaintiff was permitted to testify in his own behalf, in effect, that the duties of the fireman with respect to cleaning the engine related to that part of the engine which was above the running board, over the objection that such testimony tended to restrict the rule of the company which provided that his duties with respect to cleaning the engine extended to the entire machinery.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4171-4177.]

Whether or not certain testimony of witnesses which was rejected by the court should have been admitted, such ruling did not injure the defendant, where the same witnesses gave the same testimony in another part of their evidence, and it was before the jury in substance.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4200-4203.]

It will not require the grant of a new trial that the judge, while charging the jury upon the degree of care required of railroad companies in the matter of furnishing safe machinery to their employés and making proper inspection thereof, charged that such companies were bound to "reasonable care," where in other parts of his charge the term "ordinary care" was properly defined and was employed in connection with the term "reasonable care"; both terms being used in the same sense.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-718.]

Where, during the progress of counsel's argument in conclusion, persons in the courtroom applauded the speech, and the judge did not of his own motion suspend the case and rebuke the persons so applauding and warn the jury to disregard the incident, and there was no motion by opposing counsel for a mistrial, but a request was made by him that the court call the attention of the jury to the impropriety of the applauding and warn them to disregard the incident, it was not sufficient cause for the grant of a new trial that the judge prefaced his remarks by stating to the jury, "I am requested to call your attention to the applause," etc., after which he proceeded in an appropriate manner to warn the jury against being influenced by the incident, and to impress upon them that their verdict should be based solely upon the evidence and should not be influenced by any other cause.

The court did not commit error, while giving certain charges as requested, to add thereto the converse of the propositions contained in the requests and proper modifications and elaborations thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 668.]

In this case it was not erroneous for the judge to refuse to instruct the jury: "I charge you, gentlemen of the jury, that the evidence introduced before you of the railway employés cannot be absolutely discarded or disregarded by you, and should not be, unless you find the evidence introduced before you discredits or contradicts them. In that event you should give such weight to their evidence as you think it deserves. You should not disregard the evidence of any witness, which is not discredited either by evidence or circumstances."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 414-417.]

There was no exception to the charge of the court sufficient to require a reversal of the judgment for any reasons assigned, and certain requests to charge which were refused by the court, in so far as they contained sound legal propositions applicable to the case, were covered by the general charge.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

Under the facts of this case, a verdict for $10,000 was not excessive.

The evidence was sufficient to support the verdict.

Error from Superior Court, Muscogee County; J. H. Martin, Judge pro tem.

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

The plaintiff was employed by the defendant as a fireman to serve in the operation of its locomotive engines. On the 19th day of May, engine No. 1,418, upon which the plaintiff was employed, left Columbus, Ga., on a trip to Montgomery and return. About 2 o'clock a. m. on the 22d of May, when the plaintiff's service connected with the round trip was about to be concluded, but just before the engine was delivered to the yard crew in Columbus, while running at about four miles per hour, the plaintiff fell from the engine and sustained serious injuries. Attached to the engine was a tender, and between the two was a space of about eight inches. The duties of the plaintiff required him to be constantly over this space, and as an instrument of safety for the protection of the plaintiff and the engineer a metal apron had been provided which covered the space between the engine and the tender. The apron was fastened to the tender by means of certain bolts arranged hinge fashion, so that the apron could be moved up and down. One tongue of the bolt was bolted to the floor castings of the engine, while the other end was inserted through the apron and made fast to the apron by means of certain taps which were screwed onto the end of the bolt which went through the apron. It was so arranged that the taps would be under the bottom of the apron and would not be visible from the plaintiff's place of work while the apron was in position. It was contended that the threads to the bolt which passed through the apron were badly worn, and that on account of such condition the tap came off and the hinge became loosened, and the apron worked out of position so as to leave the space between the engine and the tender partly exposed, and that while the plaintiff was engaged in work his foot slipped in the hole, and in his effort to recover he fell and suffered the injury. It was contended that the defendant had not exercised ordinary care in its inspection of the engine and the apron in question, and that it was negligent in furnishing an appliance defective in the manner indicated, and in failing to discover the defect. On a former trial of the case the plaintiff recovered a verdict for $3,000, and the judgment refusing to grant a new trial was reversed by this court. 120 Ga. 593, 48 S.E. 136. In that case it was held that the plaintiff had shown himself to be free from fault, and that upon proof of the injury the burden of proof was upon the defendant to show that its agents and servants had exercised all ordinary and reasonable care and diligence with respect to the matters which were charged to be grounds of negligence in the declaration, and that, the defendant having shown by uncontradicted evidence that the agents and servants of the defendant were in the exercise of all ordinary care and diligence in respect to the matters of negligence alleged, the burden of proof imposed by law upon the defendant was supported, and the plaintiff could not recover. On the next trial in the court below the plaintiff and defendant introduced substantially the same evidence as had been introduced on the former trial; but at the conclusion of the defendant's evidence the plaintiff, in rebuttal, introduced a witness who had not before been sworn as a witness in the case. Among other things, this witness testified, in effect: That he was a helper to a night foreman in the shops of the defendant at Columbus at the time the plaintiff received his injury; that his hours of work were from 7 o'clock in the evening to 7 o'clock in the morning; that soon after the plaintiff had been hurt, to wit, between 4 and 5 o'clock in the morning, he had worked on the apron and fixed the bolt. With reference to these matters, the witness, among other things, said: "I worked on engine 1,418 at that time. I worked on her apron and fixed a bolt on the lefthand side. Me and Mr. Cooper first taken the bolt and put a washer and two nuts, which is called a jam nut, on it. After we done that we found there was not enough on the bolt to hold the nuts, and I spoke to him about it, and he looked at it. He had me to take that bolt out. *** The apron on that engine was attached in this way: It was fastened with a hinge and two bolts, you know, at each end, that went through the casting of the engine something like this [referring to model], put it on here, and the washer goes on here at the end [indicating on...