Georgia, F. & A. Ry. Co. v. Sasser

• Decision Date: 20 April 1908
• Docket Number: 842.
• Citation: 61 S.E. 505,4 Ga.App. 276
• Parties: GEORGIA, F. & A. RY. CO. v. SASSER.
• Court: Georgia Court of Appeals

61 S.E. 505

4 Ga.App. 276

GEORGIA, F. & A. RY. CO. v. SASSER.

No. 842.

Court of Appeals of Georgia

April 20, 1908

Rehearing Denied May 1, 1908.

Syllabus by the Court.

If the judge of a city court is disqualified, any other city court judge may preside in his stead.

In applications for continuance on the ground of surprise occasioned by an amendment made by the opposite party to his pleadings, the moving party or his counsel should state how and wherein he is less prepared to go on with the trial. Continuances on this ground are addressed to the sound legal discretion of the trial judge.

[Ed Note.-For cases in point, see Cent. Dig. vol. 10 Continuance, §§ 17, 99, 130.]

Where in a suit by or in right of a railway employé against the company for personal injuries received through the negligence of fellow servants, the defendant sets up that the employé was at fault, in that he was in disobedience to the rules of the company and also to the instructions of his superior officer, and to sustain this defense the rules and instructions are put in evidence, it is the duty of the jury to compare the conduct of the employé with the rules and instructions, and, if it appears that a violation of either the rules or of the instructions, properly interpreted, was a material contributing cause of the injury, they should find for the defendant. However, rules or instructions which are ambiguous, or which by reason of their generality of statement admit of more than one interpretation in practical application to a given state of facts, are to be construed most strongly against the company, and in favor of the employés blamelessness.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 288, 759-775.]

The charge of the trial judge to the jury in the present case on the method of construing and applying the rules of the company was not erroneous.

Where it is sought to impeach a witness by proof of unsworn statements contradictory to his testimony given on the trial, foundation for the impeachment must first be laid by directing the attention of the witness to the alleged contradictory statements, with the particularity prescribed by Civ. Code 1895, § 5292. The inaccessibility of the witness at the time it is sought to lay this foundation does not justify a departure from the rule.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1233-1246.]

In the light of the state of the pleadings and the evidence, the failure of the judge to instruct the jury that, if the deceased by the exercise of ordinary care could have avoided the effects of the defendant's negligence, the defendant would not be liable, was not error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 587-595.]

Under the statutes of the state of Florida, "where the widow sues for damages for the death of her husband by the wrongful act of another, in estimating her pecuniary loss the jury may properly take into consideration her loss of the comfort, protection, and society of the husband, in the light of all the evidence in the case relating to the character, habits, and conduct of the husband as husband, and to the marital relations between the parties at the time of and prior to his death, and they may also consider his services in assisting her in the care of the family, if any; but the widow is not entitled to recover for her mental anxiety or distress over the death of her husband, nor for his mental or physical suffering from the injury. She is also entitled to recover reasonable compensation for the loss of support which her husband was legally bound to give her, based upon his probable future earnings and other acquisitions, and the station or condition in society which he would probably have occupied, according to his past history in that respect and his reasonable expectations in the future; his earnings and acquisitions to be estimated upon the basis of deceased's age, health, business capacity, habits, experience, energy, and his present and future prospects for business success at the time of his death, and all these elements to be based upon the probable joint lives of the widow and husband. She is also entitled to compensation for loss of whatever she might reasonably have expected to receive in the way of dower or legacies from her husband's estate, in case her life expectancy be greater than his. The sum total of all these elements is to be reduced to a money value, and its present worth to be given as damages. Within these limits the jury exercises a reasonable discretion as to the amount to be awarded, based upon the facts in evidence, and the knowledge and experience possessed by them in relation to matters of common knowledge and information."

(a) The foregoing being the construction given the Florida statute by the Supreme Court of that state, it will be followed by the courts of this state.

(b) Where a statute of a sister state is pleaded and proved, the courts of this state will follow the construction adopted by the courts of that state, although no proof is made by the party that such a construction has been announced by those courts.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 307.]

The method in which one party conducts his case in court is matter of legitimate comment by the opposing counsel in argument to the jury.

The judge has the discretion of allowing counsel to ask leading questions of his own witness.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 795.]

The method of reducing expectant future damages to a present equivalent cash sum should be in accordance with the rule of the forum in which the damages are being estimated and assessed, even though the cause of action be based on a tort committed in another state.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 2.]

No error of law appears. The verdict is large, but not excessive. It is warranted by the evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Death, §§ 125-130.]

Error from City Court of Bainbridge; R. L. Shipp, Judge.

Action by Amelia Sasser against the Georgia, Florida & Alabama Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The inaccessibility of a witness at the time it is sought to lay a foundation for his impeachment does not justify a departure from the rule that, where it is sought to impeach a witness by proof of statements contradictory to his testimony, foundation must first be laid by directing the witness' attention to the contradictory statements with the particularity prescribed by Civ.Code 1895, § 5292.

Mrs. Sasser sued the railway company for the wrongful death of her husband, who was an employé. The plaintiff's case rested on these facts, which, in light of the verdict, we must take to be true: The deceased was a flagman on a freight train, which on the day he met his death was proceeding, south-bound, between Bainbridge, Ga., and Tallahassee, Fla. At Havana, Fla., this train was overtaken by a passenger train going in the same direction. The freight train contained about 20 cars, and was larger than any of the side tracks at the station. It was therefore necessary, in order to let the passenger train through, that the freight train should go down the main line to a point below the southern switch, that the passenger train should follow till it, too, had passed the switch, and then back into the side track; and, after this was done, that the freight train should back up the main line till the way was clear. As the freight train was thus backing northward (the engine being at the south end and the caboose at the north end), the deceased was standing inside the caboose, at a door cut in the rear end of it, watching the track in the direction in which the cars were being backed. Suddenly, violently, and unnecessarily, without signal or warning, the engineer threw on the air brakes in full application. The resulting sudden stoppage and jerk of the train hurled the deceased headlong from the caboose to the track, and the cars ran upon him and killed him-a casualty strikingly similar to that under review in the case of A. & B. Air Line Ry. v. McManus, 1 Ga.App. 302, 58 S.E. 258. The plaintiff pleaded and proved a statute of the state in which the homicide occurred-Florida-entitling the widow to sue and to recover "such damages as [she] may have sustained by reason of the death of the party killed"; also section 3150 of the General Statutes of that state for 1906, substantially in the language of section 2323 of the Civil Code of this state for 1895 (indeed, an adoption of the Georgia law-see F. C. & P. Ry Co. v. Mooney, 40 Fla. 17, 24 So. 148), abolishing the defense of fellow service in cases of railway employments. The defendant, in addition to denying that the application of the air brakes was violent and unusual, set up that the deceased met his death through his own carelessness, and that he was not where he ought to have been, was not at his post of duty, and was in a dangerous position, when he easily could and prudently should have been in a place of safety. The jury found for the plaintiff $10,000. The defendant moved for a new trial, and to the refusal of it brings error. Exceptions pendente lite were preserved to certain rulings, and error is assigned upon them. The further facts necessary to an understanding of the points decided will be stated in the course of the opinion.

Donalson & Donalson, F. T. Myers, and Pottle & Glessner, for plaintiff in error.

Russell & Hawes, for defendant in error.

POWELL J.

1. Judge Shipp, of the city court of Moultrie, presided at the trial in lieu of Judge Harrell, of the city court of Bainbridge; the latter being...