Gates v. Southern Ry. Co., 43444

• Decision Date: 01 July 1968
• Docket Number: No. 2,No. 43444,43444,2
• Citation: 118 Ga.App. 201,162 S.E.2d 893
• Parties: Clyde C. GATES v. SOUTHERN RAILWAY COMPANY et al
• Court: Georgia Court of Appeals

Page 893

162 S.E.2d 893

118 Ga.App. 201

Clyde C. GATES v. SOUTHERN RAILWAY COMPANY et al.

No. 43444.

Court of Appeals of Georgia, Division No. 2.

July 1, 1968.

Rehearing Denied July 24, 1968.

Syllabus by the Court

1. Defendants' motion to dismiss the appeal is denied.

2, 3, 4. The court's charge to the jury is discussed in these divisions of the opinion.

Clyde Gates brought this suit to recover for injuries sustained in a collision of plaintiff's automobile with a train at a public crossing in the city of Jesup. The defendants are the Southern Railway Company, owner and operator of the train, the Atlantic Coast Line Railway Company, owner of the railway through Jesup, and Jim Altman, who was acting as a servant of both companies as a watchman, required by municipal ordinance, at the crossing. The petition charged the three defendants with negligence in that Altman failed to signal plaintiff to stop. Defendant Southern alone is charged with additional acts of negligence in the operation of the train by its employees in failing to keep a proper lookout in backing the train over the crossing, in failing to place a light on the lead car, and in failing to warn plaintiff of the train's approach. Plaintiff took this appeal from the trial court's judgment entered on a jury verdict for defendants.

Adams & Henry, Q. Robert Henry, Brunswick, for appellant.

Bennet, Gilbert, Gilbert & Whittle, L. J. Bennet, Brunswick, for appellees.

BELL, Presiding Judge.

1. After the appeal was docketed in this court defendants filed a motion to dismiss contending that plaintiff had failed to obtain an extension of time, pursuant to Section 6 of the Appellate Practice Act (Ga.L.1965, pp. 18, 21; Code Ann. § 6-804), for filing the transcript of proceedings. An additional portion of the record having been transmitted to this court, showing that the time for filing the transcript was properly extended by order of the trial judge, the motion to dismiss the appeal is denied. In this connection see D. G. Machinery, etc., Co. v. Hardy, 118 Ga.App. 45(1), 162 S.E.2d 852 and the 1968 amendment to the Appellate Practice Act (Ga.L.1968, pp. --, --).

2. The trial court charged the jury: 'I charge you, members of the jury, that if you find that it was so dark and foggy or rainy that Mr. Gates could not see in front of his automobile for any appreciable distance, or could not see a crossing watchman, equipped with a red lantern, a red reflecting stop sign and a reflectable vest trying to wave him to a stop, you should take that, along with the speed at which he was driving, along with all of the other evidence, into consideration in determining whether or not he was in the exercise of ordinary care. If you find that by the exercise of ordinary care he could have avoided running into the train, and that his failure to use such care was the proximate cause of plaintiff's injury, you should find for the defendants.' The evidence was in conflict as to whether the watchman was present in the crossing and signaling to plaintiff. Yet this charge assumed as a fact that in the crossing there was a 'watchman, equipped with a red lantern, a red reflecting stop sign and a reflectable vest trying to wave him (plaintiff) to a stop.' While the objectionable feature of the charge was embraced in a hypothetical statement of fact, this part of the hypothesis was not left to the jury's determination but was expressed by the court as an established fact. The trial court erred in intimating an opinion as to what had been proved. Code § 81-1104; e.g., Brantley v. Davis, 143 Ga. 73(5), 84 S.E. 434. As the requested charge in Pollard v. Roberson, 61 Ga.App. 465, 466, 6 S.E.2d 203 did not include in its hypothesis an expression of established fact, that case, cited by defendants, is not applicable here.

3. (a) One of plaintiff's objections to the charge was that in the giving of defendants' numerous and repetitious requested charges the charge as a whole unduly stressed defendants' contentions. While it is true that numerous unnecessary and redundant requests were submitted by defendants and charged by the court, we do not choose to compound the redundancy by a prolonged discussion and dissection of the charge which can serve no useful purpose. For the benefit of the court on retrial of the case we do suggest that since Code § 70-207 has been specifically repealed by the Appellate Practice Act (Ga.L.1965, pp. 18, 39) and replaced by Sec. 17 of that Act (Ga.L.1965, pp. 18, 31 as amended; Code Ann. § 70-207) it will not be error to refuse to give a requested charge where the substance of the request is covered in the general instructions given. See Carnes v. State, 115 Ga.App. 387, 393, 154 S.E.2d 781; Continental Cas. Co. v. Wilson-Avery, Inc., 115 Ga.App. 793, 798, 156 S.E.2d 152; Shelton v. Rose, 116 Ga.App. 37, 40 (156 S.E.2d 659); McBerry v. Ivie, 116 Ga.App. 808, 813, 159 S.E.2d 108. Care must be exercised to see that requested charges on the same point will not subject the court's charge to the criticism that it is unduly repetitious; the fact that one party happened to request the repetitious charges will not immunize the charge from criticism. Atlantic Coast Line R. Co. v. Marshall, 93 Ga.App. 134, 136, 91 S.E.2d 96. It is the trial court's duty to see that the charge is fair in any and all events. But in carrying out that duty trial judges should bear in mind that these days error is more likely to exist in a too liberal giving of redundant requests than from the exercising of a restrictive discretion in charging...