CSX Transp., Inc. v. McCord

• Decision Date: 05 December 1991
• Docket Number: No. A91A2140,A91A2140
• Parties: CSX TRANSPORTATION, INC. v. McCORD.
• Court: Georgia Court of Appeals

Page 508

414 S.E.2d 508

202 Ga.App. 365

CSX TRANSPORTATION, INC. v. McCORD.

No. A91A2140.

Court of Appeals of Georgia.

Dec. 5, 1991.

Reconsideration Denied Dec. 19, 1991.

Certiorari Denied Feb. 10, 1992.

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Atlanta, for appellant.

Burge & Wettermark, Michael J. Warshauer, Atlanta, Dunaway & Wallace, Roger W. Dunaway, Jr., Thomson, for appellee.

McMURRAY, Presiding Judge.

This is a Federal Employers' Liability Act (FELA) case. Plaintiff McCord was employed by defendant CSX Transportation, Inc., when he suffered three on-the-job injuries for which he seeks to recover damages in the case sub judice. Two of the injuries occurred when plaintiff attempted to operate railroad switches and the third was sustained when he ran to catch railway cars which rolled away unexpectedly. Defendant appeals following a jury verdict and judgment in favor of plaintiff for $462,625, plus interest and costs. Held:

1. Defendant's first enumeration of error complains of the trial court's refusal to strike hearsay portions of plaintiff's hospital record and admission into evidence of the entire hospital record. "Where a document offered into evidence is admissible in part and inadmissible in part, and objection is made to the document as a whole, it is not error to admit the whole document." Stubbs v. Daughtry, 115 Ga.App. 22(1), 153 S.E.2d 633. At trial, defense counsel insisted on the removal of hearsay material from the hospital record stating first that he had not read the document but that "medical records always have lots of hearsay...." After a brief examination of the exhibit, defense counsel "noted the nurse's notes and the doctor's notes both contain some hearsay material that I think needs to be taken out." Defense counsel failed to provide a more specific objection and upon review of the record we find that plaintiff's hospital record contains numerous notes of various nurses and doctors, so that we are unable to determine which contains the alleged hearsay material to which defense counsel was referring at trial. It follows that defense counsel's failure to adequately preserve this issue on the record by specific statement of the grounds of his objection results in a waiver. Nor may defendant remedy this deficiency through its brief on appeal.

2. Defendant's second and third enumerations of error complain that there was no evidence authorizing the trial court's charge to the jury concerning the automatic coupler provisions of the Safety Appliance Act, 45 U.S.C. § 2. In order for this statute to become applicable, plaintiff was obligated to prove that the train couplers failed to function automatically on impact or that rail cars, once coupled, failed to remain attached until purposely released. O'Donnell v. Elgin, Joliet & Eastern R. Co., 338 U.S. 384, 389, 70 S.Ct. 200, 203, 94 L.Ed. 187.

Plaintiff's third injury occurred while he, along with others were forming a train. When an attempt was made to pull a cut of 25 rail cars which appeared to be coupled from Stand Pipe track, the cars separated and plaintiff mounted a car which was rolling and tried to stop the loose cars by use of a handbrake. Afterwards, plaintiff began to get stiff in his back and arms, and experienced severe pain in his lower back.

The rail cars involved in this alleged injury of plaintiff were placed in the Stand Pipe track by others who did not testify at trial. Plaintiff testified that the rail cars appeared to be coupled because the air hoses were coupled. Other witnesses testified that when air hoses are coupled the cars are presumed to be coupled since the practice upon the railway is to test that the cars are coupled before air hoses are attached. The rules of the defendant railroad required that the cars be coupled before the air hoses were attached. Thus, when rail cars with air hoses attached, separate when pulled such indicates a malfunction of the coupler. The jury was authorized to reject the conflicting testimony that air hoses were sometimes attached where rail cars had not been coupled and conclude that the attached air hoses were sufficient circumstantial evidence that the rail cars in question had been properly coupled so that the separation of a number of cars when pulled indicated a defective coupler. There being some evidence authorizing the charge on automatic couplers, the trial court did not err in presenting this issue to the jury. Hannula v. Ramey, 177 Ga.App. 512, 513(2), 339 S.E.2d 735.

Defendant's sole objection to the charge at issue was that it was not authorized by the evidence. Therefore, no issue as to the wording of the charge was preserved for appeal. Brown v. Dept. of Transp., 194 Ga.App. 530(3), 531, 391 S.E.2d 32.

Nor do we find merit in defendant's contention that plaintiff's injuries were too remote to attribute to any violation of the Safety Appliance Act. Causation is generally a matter for the jury. In the case sub judice, there is evidence that rail cars were set in motion due to a faulty coupler and that plaintiff was injured while attempting to halt the rolling rail cars so as to protect defendant's property and the safety of plaintiff's co-workers. The jury was instructed on plaintiff's burden of proof and duty to prove proximate cause. These enumerations of error are without merit.

3. In its fourth enumeration, defendant contends that the trial court erred in specially admitting plaintiff's Alabama licensed attorney, Burge, to represent him in this case. Rule 1-203 of the State Bar of Georgia provides that a licensed attorney in good standing from another state may appear in the courts of Georgia "in isolated cases." Defendant presented evidence that Burge was involved in no fewer than ten pending FELA cases in various Georgia courts and that in most of these instances Burge had been admitted, pro hac vice, or a motion pursuant to Rule 4.4 of the Uniform Rules for the Superior Courts was pending. Defendant argues that this level of activity exceeds that intended to be permitted under Rule 1-203 of the State Bar of Georgia and amounts to the unlawful practice of law in Georgia.

Whether an attorney licensed in another state will be permitted to appear in a specific case in the courts of Georgia is generally a matter for the discretion for the trial court in the absence of abuse. Pence v. Seaboard Coast Line R. Co., 128 Ga.App. 161, 196 S.E.2d 182. In the case sub judice, the activities of the out-of-state attorney in Georgia appear to be limited to cases within a narrow specialty in which he has a genuine expertise and there is no indication that he is involved in using our provision for pro hac vice appearances to circumvent our licensing requirements or conduct a general practice of law. In West Virginia ex rel. H.K. Porter Co. v. White, 182 W.Va. 97, 386 S.E.2d 25, the West Virginia Supreme Court construed a rule governing pro hac vice admissions similar to those applicable here and including a provision prohibiting "numerous or frequent" appearances. The West Virginia Supreme Court held that under circumstances substantially similar to those here, the "numerous or frequent" appearances language would not be interpreted to reject the pro hac vice application of an otherwise qualified attorney. This case appears to representative of the general view on this issue. See 61 ALR 3d 264 and 20 ALR 4th 855. We find no abuse in the trial court's special admission of Burge to represent plaintiff in the case sub judice.

4. In the fifth enumeration of error, defendant contends that a charge given the jury predicated on 45 U.S.C. § 54, that plaintiff did not assume the risks of his employment,...