Elam v. Atlantic Coast Line R. Co.
| Decision Date | 11 April 1967 |
| Docket Number | No. 1,No. 42719,42719,1 |
| Citation | 155 S.E.2d 644,115 Ga.App. 656 |
| Parties | Iris J. ELAM et al. v. ATLANTIC COAST LINE RAILROAD COMPANY et al |
| Court | Georgia Court of Appeals |
The administrator of the estate of Herschel V. Johnson, his children by his first wife and his children by his second wife (both of whom he had divorced) filed separate suits against the Atlantic Coast Line Railroad and its engineer to recover damages on account of his wrongful death when a truck operated by Johnson struck a diesel engine of the defendant which was pulling fifteen freight cars across a grade crossing with a spur track located just outside the city limits of Savannah. The three suits were consolidated for trial and a verdict for the defendant was returned in each of them. From the overruling of their motions for new trial plaintiffs appeal.
The case was tried in July, 1965, prior to the effective date of the Appellate Practice Act of 1965.
Joseph B. Bergen, Creech & Creech, James O. Creech, Savannah, for appellants.
Bouhan, Lawrence, Williams & Levy, Alex A. Lawrence, Savannah, for appellees.
Syllabus Opinion by the Court
1. The evidence did not demand a verdict for plaintiffs, hence there is no merit in the general grounds of the motions.
2. It is contended that there was error in the exclusion of a photograph of the crossing showing that the defendant had erected a sign on the western side and facing traffic approaching from the west (the deceased having approached from the east) designating the crossing as dangerous and admonishing the traveling public that it was unsafe. The record indicates that the trial judge ruled the photograph 'inadmissible at this time,' but later in the trial the same photograph was identified by defendant's employee and witness when submitted to him by plaintiff's counsel and the court thereupon announced that the picture had 'now bocome admissible' and that it was admitted into evidence. If the tentative exclusion was error the subsequent ruling cured it. Mitchell v. J. S. Schofield's Sons Co., 19 Ga.App. 201(1), 91 S.E. 275; Holderness v. Hutcheson Mfg. Co., 25 Ga.App. 612(3), 103 S.E. 838; Harrison v. Carswell, Moxley & Son, 34 Ga.App. 630(1), 130 S.E. 694.
3. The enumeration asserting error in the enclusion of testimony of the clerk of the county commissioners that there had been no designation by the commissioners of the grade crossing as an unsafe one, nor any notification thereof to the railroad whereby it would be required to erect 'unsafe crossing' signs under provisions of Code § 95-1801 is without merit, since the evidence did not and could not raise a duty on the part of the railroad to place signs specified in the Code section at the crossing, and was irrelevant to the issues.
4. The contention that a portion of the charge concerning the duties of railroads was erroneously given because the court did not, in connection therewith, give instruction as to 'how or in what manner a railroad should have exercised such care and the presumption of negligence imposed on railroads by statutes,' presents no ground of error and raises no question for consideration. Payne v. Young, 27 Ga.App. 370(4), 108 S.E. 312; Andrews Taxi & U-Drive-It Co. v. McEver, 101 Ga.App. 383, 384, 114 S.E.2d 145. 'A correct instruction to the jury is not subject to exception for failure, in the absence of an appropriate request, to embody an additional definitive or explanatory charge.' Sherrer v. Holliday, 165 Ga. 413(2), 141 S.E. 67; Hennemier v. Morris, 51 Ga.App. 760(3), 181 S.E. 602.
5. An exception to a lengthy portion of a charge, containing several distinct propositions, on the ground that it is abstractly incorrect is without merit unless all propositions stated are abstractly incorrect. Georgia, Fla. & Ala. Ry. Co. v. Lasseter, 122 Ga. 679(6), 51 S.E. 15. This is particularly true when there is no specification of the particular portion claimed to be error, and if any of the extract excepted to is sound law an affirmance must result. Cobb v. State, 76 Ga. 664(1); Grace v. Martin, 83 Ga. 245(5), 9 S.E. 841; Wheeler v. State Highway Dept., 106 Ga.App. 323, 325, 126 S.E.2d 808. Ground 4 of the amended motion for new trial and of the enumerations of error is without merit.
6. Enumerations of error which are not argued or supported in the brief are deemed abandoned. A mere repetition in the brief of the enumeration of error itself does not constitute either argument or support by the citation of authority. Nor does an assertion that the portion excepted to 'was couched in the alternative,' or that it amounts to an 'improper comment on the evidence,' demonstrate error. The court simply pointed out questions raised by the evidence which were for the jury and which he instructed must be solved by them in arriving at the verdict. Enumerations numbered 5, 6, 7, 8 and 15 are without merit.
7. A contention that a portion of the charge 'contains an improper statement of law relating to a flag crossing' without pointing out, in the amended motion for new trial, the enumeration of error or in the brief what improper statement of law appeared, or what a proper statement of the law relating to a flag crossing would have been, raises no question for our consideration. Nor does an assertion that the charge excepted to 'failed to state that the regulations of the appellee railroad company required a flag crossing to be flagged,' when the portion excepted to was: Nor does it amount to an improper comment on the evidence. If anything, it was favorable to the plaintiffs in directing the attention of the jury to the questions raised-all of which were but statements of plaintiffs' contentions in the form of questions.
8. After charging fully on the contentions of the plaintiffs there was no error in prefacing the next portion of the charge with 'Now coming back to the defense * * *' and proceeding to charge on some of the contentions of the defendant.
9. It was not erroneous to include in the closing portion of the charge an admonition to the jury that in arriving at a verdict 'neither prejudice against...
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