Davis v. Whitcomb
| Decision Date | 25 June 1923 |
| Docket Number | 14165. |
| Citation | 118 S.E. 488,30 Ga.App. 497 |
| Parties | DAVIS, AGENT, v. WHITCOMB. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
This was an action for the killing of the plaintiff's husband at a public grade crossing by the alleged negligence of the defendant in the running of its train, the trial of which resulted in a verdict for the plaintiff. The general grounds of the defendant's motion for a new trial are controlled by the previous ruling of this court in the same case reversing the direction of a verdict for the defendant. 27 Ga.App. 722, 109 S.E. 703. The evidence may have varied to some extent at the second trial, but is still of such a nature as to render applicable the same principles, even regardless of the "law of the case." See Howard v. Savannah Electric Co., 140 Ga. 482, 79 S.E. 112; Georgia R. & Banking Co. v. Wallis, 29 Ga.App. 706 116 S.E. 883.
Except where a particular act is declared to be negligence, either by statute or by a valid municipal ordinance, "the trial judge should not tell the jury what acts would constitute negligence, and what would not, but should instruct them as to the proper measure of diligence, and leave them to determine, in view of all the evidence bearing on the subject of the time, place, circumstances, and happenings, whether there was or was not a want of due care." Atlanta & West Point R. Co. v. Hudson, 123 Ga. 108 (1), 109, 51 S.E. 29, 30, and cases there cited. See, also, Savannah Florida & Western Ry. Co. v. Evans, 115 Ga. 315 (1), 41 S.E. 631, 90 Am.St.Rep. 116; Augusta Ry. & Electric Co v. Weekly, 124 Ga. 384 (2), 52 S.E. 444; Western & Atlantic R. Co. v. Casteel, 138 Ga. 579 (1), 75 S.E. 609; Savannah Electric Co. v. Joseph, 25 Ga.App. 518 (2), 103 S.E. 723.
"Language used by the Supreme Court in deciding a case before it, especially where used in discussing the facts of such case, is often inappropriate for use by the judge of a trial court in charging the jury." Atlanta & West Point R. Co. v. Hudson, 123 Ga. 108 (2), 51 S.E. 29; Georgia Ry. & Electric Co. v. Gatlin, 142 Ga. 293 (4), 82 S.E. 888.
Under the rulings of the two preceding paragraphs the court did not err in refusing to charge as follows: "If you find that plaintiff's husband knew of the approach of the train, and yet undertook to cross the track, thinking he could cross before the train reached him, miscalculated its speed, there can be no recovery in this case, even though you may find that the defendant's servants were negligent in failing to blow the whistle and continuing to blow same as required by law." In Southern Railway Co. v. Grizzle, 131 Ga. 287 (3), 62 S.E. 177, it was held that a request to give a similar charge was properly refused. The fact that two of the justices in that case dissented will not incline this court to certify to the Supreme Court the question of the correctness of the rule, since additional reasons existed in the case at bar for refusing the request. The decedent was killed while traveling alone by automobile, and even if he saw the train there was nothing whatever to show what he thought, purposed or calculated.
"In this state it is not per se negligent for one not aware of the approach of the train to attempt to cross the track without stopping, looking, or listening." Bryson v. Southern Railway Co., 3 Ga.App. 407 (3), 59 S.E. 1124; Tennessee, etc., R. Co. v. Neely, 27 Ga.App. 491 (2), 493, 108 S.E. 629. If the judge had charged, as requested, "that it was the duty of the plaintiff's husband to use his senses of sight and hearing to determine whether there was any danger or not before he attempted to cross the track of the railroad," he would have implied that the failure so to do was negligence per se, and would have violated the principles stated in paragraphs 2 and 3 above, as well as the rule just quoted. The request should have been qualified, so as to permit the jury to determine whether ordinary prudence would have required such precaution under the particular circumstances. For a correct charge on the subject, see Collum v. Georgia Ry. & Electric Co., 140 Ga. 573 (3), 79 S.E. 475.
This homicide occurred before the passage of the act of August 19, 1918 (Ga. L. 1918, p. 212), repealing sections 2675 and 2677 of the Code of Georgia and enacting new regulations. The petition charges negligence in the failure to blow the whistle on approaching the crossing, as required by these sections. This requirement of the Georgia blow post law was not affected by the decision of the Supreme Court of the United States in Seaboard Air Line Railway Co. v. Blackwell, 244 U.S. 310, 37 S.Ct. 640, 61 L.Ed. 1160, L.R.A. 1917F, 1184, but only the provisions in reference to checking the speed.
It was provided by section 2677, in force at the time of the occurrence in question, that, "if any engineer neglects to blow said whistle as required, * * * he is guilty of a misdemeanor." Such a failure is negligence per se, if the proximate cause of the injury. Seaboard Air Line Railway v. Hollis, 20 Ga.App. 555, 559, 93 S.E. 264, and cases cited. A violation of this statute by the railroad company as to a person crossing the track on a public road has been held to be negligence of the "grossest" character. Brunswick & Western Railroad v. Hoover, 74 Ga. 426 (2), 428.
"A person, while grossly negligent himself, has no legal right to count on due diligence by others, but is bound to anticipate that others, like he has done, may fail in diligence, and must guard, not only against negligence on their part which he might discover in time to avoid the consequences, but also against the ordinary danger of there being negligence which he might not discover until too late." Central Railroad & Banking Co. v. Smith, 78 Ga. 694 (4), 3 S.E. 397.
To have charged, as requested, that "the engineer of the defendant's train had a right to assume that the plaintiff's husband would not approach the railroad track at a rate of speed greater than 6 miles per hour," without a qualification submitting to the jury the issue of the defendant's negligence, would have assumed, in the face of evidence to the contrary, that the engineer had not violated the duty of blowing the whistle, since, under the ruling just quoted, he could not claim the right of expecting diligence in others, if grossly negligent himself. The qualification was not contained in the charge approved by this court in Western Union Telegraph Co. v. Spencer, 24 Ga.App. 471 (5), 101 S.E. 198, but the injury there did not happen, as here, at a public road crossing, on the approach of which the defendant was under the statutory duty of blowing the whistle, regardless of the decedent's presence or negligence, though, of course, a failure so to do would not be negligence as to him, if he otherwise knew of the train's approach. Central of Georgia Ry. Co. v. McKey, 13 Ga.App. 477 (3), 79 S.E. 378.
(a) Furthermore, a person may not assume a thing to exist contradictory to his knowledge, and the assumption stated would have been warranted, even under the Spencer Case, only "in the absence of anything to the contrary," which qualification should have been included in the request, in view of the evidence of the engineer that he saw the decedent approaching the crossing at a much greater speed, though "thinking" that he would stop. The omission of this qualification from the request again distinguishes it from the charge approved in the Spencer Case. For two reasons, therefore, the ruling in that case is not authority for a reversal upon this assignment. The court did not err in refusing the request.
The court having in the general charge clearly confined the jury to a consideration of the question of the negligence charged, the instruction that "the burden is on the plaintiff, Mrs. Whitcomb, to establish her right to recover by a preponderance of the testimony; but when she proves, if she has proven, that her husband was killed upon the right of way of the defendant company, by the operation of its train, then this burden is shifted upon the railway company, and the government operating the railway company, to prove, by a preponderance of the testimony, that it was not due to its fault and negligence or that the deceased, Whitcomb, by the exercise of ordinary care could have avoided the injury to himself," was not erroneous as permitting and authorizing the jury to find for the plaintiff upon acts of negligence other than those specified, nor as placing upon the defendant the burden of showing that it was not negligent in respects not alleged. Central Railroad & Banking Co. v. Nash, 81 Ga. 580 (2), 7 S.E. 808; Central of Georgia Railway Co. v. Bagley, 121 Ga. 781 (5), 49 S.E. 780; Georgia Railway & Electric Co. v. Reeves, 123 Ga. 697 (8), 51 S.E. 610; Jackson v. Georgia R. & Banking Co., 7 Ga.App. 644 (1), 67 S.E. 898.
The reason for the preceding ruling applies equally to the similar assignments upon the charge that "The burden rested upon the defendant railway company to use ordinary care and diligence not to injure a person crossing its railroad track at a railroad crossing, and this care and diligence which it owed to the deceased, Whitcomb, was what we term in law ordinary care and diligence."
(a) The exceptions that this charge placed upon the defendant a greater burden than authorized by the law, and was not pertinent or adjusted to the law as it existed at the time of the homicide, are too general to raise any question for decision. Early v. State, 14 Ga.App. 467 (5), 81 S.E. 385; Betts Co. v. Mims, 14 Ga.App. 786, 788, 82 S.E. 474; Odum v. Rutledge, 16 Ga.App. 350 (2, 3), 85 S.E. 361.
(b) The charge was correct in regard to a person crossing the defendant's track on a public road (Holland v Sparks, 92 Ga. 753[2], 758, 18...
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