Edwards v. Atlanta, B. & C. R. Co.

• Decision Date: 16 July 1940
• Docket Number: 28129.
• Citation: 10 S.E.2d 449,63 Ga.App. 212
• Court: Georgia Court of Appeals
• Parties: EDWARDS et al. v. ATLANTA, B. & C. R. CO.

10 S.E.2d 449

63 Ga.App. 212

EDWARDS et al. v. ATLANTA, B. & C. R. CO.

No. 28129.

Court of Appeals of Georgia, Division No. 1.

July 16, 1940

Rehearing Granted July 30, 1940.

Judgment Adhered to July 31, 1940.

Syllabus by the Court.

Jule Felton and Gilbert C. Robinson, both of Montezuma, for plaintiffs in error.

A. A Marshall, of Montezuma, Jay & Garden, of Fitzgerald, and Brandon, Hynds & Tindall, of Atlanta, for defendant in error.

MacINTYRE Judge.

Mamie Edwards brought suit against the Atlanta, Birmingham &amp Coast Railroad Company, to recover damages for the value of the life of her husband, Warren Edwards, who was killed by a passenger train at a railroad crossing about one mile north of the City of Oglethorpe, Georgia. Some time previous to the trial

Mamie Edwards died, and Oscar Edwards and Warren Edwards, the sole surviving children of Mamie Edwards and Warren Edwards were made parties plaintiff in lieu of their deceased mother. The motion for new trial as amended was overruled and the plaintiffs excepted.

1. Special ground one complains of the court's failure to give the following requested charge: "I further charge you that the stop, look and listen doctrine does not prevail in Georgia, as a matter of law, therefore even if the decedent, Warren Edwards, had been aware of the fact that the train was approaching a railroad crossing, it would still have been a question for the jury as to whether or not he could have relied upon his sense of hearing as to the approach of the train, or whether that he was required to take additional precaution." The plaintiffs contend that "the particular matter in issue to which the written request to charge was particularly adjusted was: Although it was not as a matter of law per se negligence for the deceased to attempt to cross without stopping, looking and listening, the court left it open for the jury to surmise and to determine as a matter of fact his attempting to cross independently of the circumstances was such contributory negligence as would bar a recovery and the refusal to charge as requested was prejudicial and harmful to movants, for the simple reason that, as a matter of law, the jury had a right to determine whether the deceased under the circumstances was justified in relying upon his sense of hearing as to the approach of the train, or whether the circumstances required him to take additional precaution, and although the charge as given may have been abstractly correct, it furnished no criterion for the jury to consider in passing upon the question of negligence if the deceased attempted to cross without stopping, looking and listening, other than the following qualification: 'the law in this as in all other cases properly leaving it for the jury to determine whether or not a given act on the part of either of the parties con nected with the transaction was in itself negligence."'

It appears that the judge charged the jury as follows: "However, in this State it is not per se negligence for one not aware of the approach of the train to attempt a crossing of the railway tracks without stopping, looking and listening; accordingly, such an attempt can not as a matter of law be said to constitute such contributory negligence as would bar recovery, the law in that as in all other cases properly leaving it for the jury to determine whether or not a given act on the part of either of the parties connected with the transaction was in itself negligence." The charge as a whole covered plainly and in substance the principles of law stated in the request to charge. The plaintiffs were not entitled to have the court adopt this language, framed in argumentative form and emphasizing selective facts in their interest, and the failure to give the charge in the language requested was not reversible error. Southern Railway Co. v. Wilcox, 59 Ga.App. 785, 789 (4), 2 S.E.2d 225; Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (3), 54 S.E. 110; Southern Ry. Co. v. Reynolds, 126 Ga. 657 (3), 55 S.E. 1039.

2. Special ground two complains of the court's failure to give the following requested charge: "one exercising ordinary care is not bound to anticipate negligence when the law commands diligence for his protection. If the decedent had been on or near the crossing, or at any place he was by right entitled to be, he would have been warranted in assuming that the whole world would be diligent in respect to him and his safety."

The first sentence of the requested charge was in effect given in charge, for the judge charged the jury: "The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence of the other is apparent or should have in the exercise of ordinary prudence reasonably apprehended its existence." The plaintiffs can not complain that the judge did not use the exact language of the request. To charge as requested in the latter portion of the request that "if the decedent had been on or near the crossing, or at any place he was by right entitled to be, he would have been warranted in assuming that the whole world would be diligent in respect to him and his safety," without a qualification submitting to the jury the issue of the plaintiffs' father's negligence, would have assumed, in the face of evidence to the contrary (plaintiffs' father approaching the crossing at 60 miles per hour, contrary to law), that the plaintiffs' father had not violated the duty of exercising ordinary care in approaching and using the crossing; since the law says to both the plaintiffs' father and the railroad company, "You should exercise ordinary care in approaching and using the public crossing." Southern Railway Co. v. Slaton, 41 Ga.App. 759 (2), 154 S.E. 718; Code, § 94-506; Western Union Telegraph Co. v. Spencer, 24 Ga.App. 471 (5), 101 S.E. 198; Georgia Power Co. v. Gillespie, 48 Ga.App. 688, 697, 173 S.E. 755. The plaintiffs could not claim and expect diligence in others if their dead father himself had failed to exercise ordinary care. Davis v. Whitcomb, 30 Ga.App. 497 (9), 118 S.E. 488.

Unless the request is perfect in every particular it is not reversible error to refuse to charge as requested. Hardeman v. Ellis, 162 Ga. 664 (26), 135 S.E. 195; Green v. State, 124 Ga. 343 (8), 52 S.E. 431. Under the rule that while the principle of law may be laid down hypothetically and may be unobjectionable in the abstract (as the language in this last sentence appears to be, Central Railroad & Banking Co. v. Smith, 78 Ga. 694, 700, 3 S.E. 397), yet where the instruction contains a statement that the rule so announced applied to the facts of the case, being based upon an assumption of the existence of controverted facts, that portion of the request (to-wit, the last sentence thereof) asserting the applicability of the proposition to the facts of the case is objectionable. 1 Reid's Branson Instructions to Juries 48 (4), § 21. The charge requested here without the qualification suggested was not correct in all particulars, and it was not reversible error to fail to charge as requested. This ground is not meritorious.

3. Special ground 3 complains of the following excerpt from the judge's charge: "I charge you that the employees of the defendant railroad company who were in charge of the operation of the train at the time of the collision complained of had a right to assume that Edwards was a rational human being, and would exercise reasonable care and diligence for his own protection." The plaintiffs in error contend that "as an abstract principle of law this charge, under the facts to which it was applied, is not sound, for the reason that the court omitted the qualifying words necessary to make it sound when applied to the facts," that this charge without the proviso "to the effect that this rule would not be applicable if the jury determined from the evidence that the employees in charge of the train were guilty" of negligence is unsound, illegal, harmful, and prejudicial to plaintiff, "especially in view of the allegations and proof offered in support of these facts."

In the absence of anything to the contrary, every adult is presumed to possess ordinary intelligence, judgment and discretion (Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712 [1], 68 S.E. 483), and the engineer had a right to assume that the deceased possessed such faculties, or, in other words, that he was a rational human being. There being a duty on the deceased to exercise ordinary care in approaching and using the public crossing, the engineer likewise had the right to assume that the deceased would exercise ordinary care for his own safety and protection. The charge complained of, without a qualification submitting to the jury the issue of the defendant's negligence, would have assumed, in the light of evidence to the contrary (there being evidence that the train was travelling 60 miles per hour and that the engineer failed to blow the whistle and ring the bell and keep a strict lookout ahead), that the engineer had not violated the duty of blowing the whistle and keeping a strict lookout ahead, and might have constituted reversible error as urged by the plaintiffs. Davis v Whitcomb, 30 Ga.App. 497, 499 (9), 118 S.E. 488. However, the judge elsewhere had charged the jury with reference to the negligence of the defendant's employees and before giving the particular excerpt from the charge complained of, specifically charged the jury as follows: "By suggestion I give some matters in charge here. They, of course, will be considered with all other instructions in the case. In the main they are mere general propositions of law that have been touched upon in some other part of the instructions." This excerpt, when considered with the...