Georgia Power Co. v. Gillespie

• Decision Date: 03 March 1934
• Docket Number: 23220.
• Citation: 173 S.E. 755,48 Ga.App. 688
• Parties: GEORGIA POWER CO. v. GILLESPIE.
• Court: Georgia Court of Appeals

173 S.E. 755

48 Ga.App. 688

GEORGIA POWER CO. v. GILLESPIE.

No. 23220.

Court of Appeals of Georgia, First Division

March 3, 1934

Syllabus by the Court.

1. The court did not err in overruling the demurrer to those paragraphs in the plaintiff's petition alleging negligence with reference to the operation of a street car by one man acting in the dual capacity of motorman and conductor. Such operation would not of itself constitute negligence, but under the allegations of the petition, it was a question for the jury to determine whether the operator at the time of the accident was prevented from doing his duty towards the plaintiff by trying to perform the duties of both motorman and conductor, and whether such failure entered into and caused the injury.

2. The evidence sufficiently showed the injury to have occurred in the city of Atlanta, Fulton county, Ga., and therefore the ground of the motion for new trial with reference to the failure to prove the venue is without merit.

3. The qualification which the court put upon section 2781 of the Civil Code (1910) is that contained in section 4426, which two sections are in pari materia; and the charge complained of did not tend to mislead and confuse the jury to the injury of the defendant.

4. In view of the charge as a whole and the absence of any written request, it was not error to fail to charge the jury that the mere fact that the defendant's car was operated by a single employee, acting in a dual capacity of motorman and conductor, would not of itself constitute negligence.

5. The evidence adduced at the trial sufficiently supported the verdict.

6. The court did not err in allowing the written statement of the defendant's witness, made before the trial, to be admitted in evidence, leaving it to the jury to determine whether there was any conflict between it and the testimony of the same witness at the trial, and further instructing them that if no conflict existed they should not consider it.

7. "Where the object of a cross examination is to show bias or interest, so as to impeach the witness, great latitude should be allowed by the court, and [[where] questions if answered in the affirmative might tend in that way [they are] not objectionable." Floyd v. Wallace, 31 Ga 688 (1).

8. The court did not err in admitting a photograph of the scene of the accident, offered by the plaintiff over the objections of counsel for the defendant that: (1) The photograph was made on November 11, 1932 (the accident happening on December 15 1930); and (2) the photograph was misleading, in that it did not and could not accurately and distinctly portray the conditions in existence at the time of the alleged accident as the weather was clear when the photograph was taken and the weather was alleged to be misty or rainy at the time of the alleged accident.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Suit by G. B. Gillespie against the Georgia Power Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Harllee Branch, Jr., and Colquitt, Parker, Troutman & Arkwright, all of Atlanta, for plaintiff in error.

White Poole, Pearce & Gershon, of Atlanta, for defendant in error.

MACINTYRE Judge.

This was an action brought in the superior court of Fulton county, Ga., for personal injuries sustained by the plaintiff, George B. Gillespie, as a result of the alleged negligence of the defendant. The trial resulted in a verdict and judgment in favor of the plaintiff. The defendant's motion for new trial was overruled. Certain demurrers to plaintiff's petition were overruled. Objections to amendments offered by the plaintiff to his petition were overruled. To these rulings the defendant excepted.

1. The defendant demurred separately to the allegations in paragraphs 18, 19, and 20 in the petition as amended, relating to the allegations that it constituted negligence, under the particular facts alleged on the part of the defendant, to operate a street car by having one man only act as both motorman and conductor. The allegations of the petition relating to the operating of what is generally known as a one-man street car are as follows, to wit:

That the place of the occurrence of the injury complained of and hereinafter described is on Peachtree street, at the eastwest crosswalk between the intersection of Cain and Peachtree streets and the intersection of Harris and Peachtree streets, all being within the city limits of Atlanta of said state and county. This crosswalk is in downtown Atlanta, where the traffic is extremely crowded and the street cars pass by this crosswalk every three or four minutes. The time of the injury hereinafter alleged was at the time of the crowded and rushing evening traffic for taking persons from their offices to their homes. Said crosswalk is constantly in use by the public as a place wherein Peachtree street could properly be crossed by pedestrians, and at said time of the evening was as fully in use as at the most crowded part or other time of the day.

That said crosswalk was demarcated with white lines by the police department of the city of Atlanta as a place in which pedestrians should cross said street. That the police department and its members are the proper authorities for permitting persons to cross said street at said time and place, and your petitioner was permitted by the police department of the city of Atlanta to cross said street at said time and place.

That petitioner did walk across said street between two white lines about twelve feet apart, running directly across Peachtree street from the entrance of an alley twelve feet wide to the curb on the other side of Peachtree street. That the public and the pedestrians of the public had for several years prior to the time of the injury herein referred to used said space between said white lines as a place to cross said street and the tracks of the defendant company; that said place was habitually used by the public without the disapproval of the defendant company; and that the employees of the defendant company who drive its cars over its tracks at said place were aware of the custom of the public to use said space between said white lines as a proper place to cross the street and the tracks of the defendant company.

That at the time of the collision the conductor-motorman of defendant's car could have seen petitioner if he had looked, but actually did not see your petitioner, because his attention to his duties as motorman was temporarily diverted in order that he might give his attention to his duties as a conductor. Among the conductor duties of said operator were the duties of assisting passengers to and from their seats, collecting fares, making change for passengers, and assorting fares and change in order to enable him to place or replace the same in his money carrier. Among his motorman duties were the duty of manipulating the controls of the car, to make it move and stop and to keep an outlook straight ahead to see that he did not encounter persons or property with the street car. There are times in the performance of his duties as a conductor when said operator cannot and does not perform said duties as a motorman, and it was at one of these times that the motorman of defendant's car did fail to look ahead and see petitioner. It was the performance of one or some of these duties as a motorman which temporarily diverted said operator's attention from his duty of driving said car and keeping a lookout straight ahead. The defendant was negligent, in that its agent was driving its car at the time of the collision while acting as both motorman and conductor.

That the defendant was negligent in permitting its agent to drive its car at the time of the collision, without the assistance of a conductor.

That the defendant was negligent in permitting its agent to control said car at the time of the collision in the dual capacity of motorman and conductor.

The mere fact that the defendant's street car was operated by a single employee acting in the dual capacity of motorman and conductor would not of itself constitute negligence. See, in this connection, Di Prisco v. Wilmington City R. Co., 4 Pennewill (Del.) 527, 57 A. 906, 908, where it is said "The defendant had a right to use the public highway, at the time and place of the accident in common with other travelers and persons who saw fit to use it. The public, as well as the defendant company, were entitled to use said highway. The electric cars of necessity could use only those parts of it covered by their tracks, inasmuch as such cars move only upon their tracks within fixed limits. Within those lines the right of the company is superior to that of other users, and must not be unnecessarily interfered with or obstructed. In using the highway all persons are bound to the exercise of reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger of the peculiar risks in each case. It is the duty of the company to provide competent and careful motormen and servants; to see that they use reasonable care in operating the cars; that the cars move at a reasonable rate of speed; that they slow up, or stop, if need be, where danger is imminent, and could, by the exercise of reasonable care, be seen or known in time to prevent accident; and that proper warning be given of the approach of the car at a crossing on the public highway. There is a like duty of exercising reasonable care on the part of the traveler. The company and the traveler are both required to use such reasonable care as the circumstances of the case demand; an increase of care on the part of both being required where there is an increase of...