Georgia R. & Banking Co. v. Wallis

• Decision Date: 21 February 1923
• Docket Number: 13743.
• Parties: GEORGIA R. & BANKING CO. v. WALLIS.
• Court: Georgia Court of Appeals

116 S.E. 883

29 Ga.App. 706

GEORGIA R. & BANKING CO. v. WALLIS.

No. 13743.

Court of Appeals of Georgia, Second Division

February 21, 1923

Syllabus by the Court.

This was an action for damages by one as guardian of certain children, whose mother had died previously, for the death of the father, whose death was alleged to have been caused at a public street crossing by the negligence of the defendant in the operation of its train. There was evidence sufficient to support the verdict in favor of the plaintiff.

It cannot be held as a matter of law that the verdict in the instant case was for a sum so large as to evince any prejudice or bias on the part of the jury, or that it was in any degree beyond the amount which the jury in the exercise of their legitimate functions could have found from the evidence.

There was no error in admitting the testimony of a witness for the plaintiff, "I have never known the railroad to maintain a watchman or guard at that crossing," over the objection merely that such evidence was irrelevant and immaterial, and did not "relate to the time of the accident."

There was no error in the exclusion of evidence offered by the defendant that a witness in the case appeared before a grand jury to give evidence in an inquiry in relation to some alleged criminality of the decedent, nor in the exclusion of bills of indictment charging the decedent with previous crimes, but upon which there had been no conviction or trial even if such indictments would otherwise have been admissible. None of such evidence was relevant or material as illustrative of the value of the life of the deceased or of his reckless and negligent character, notwithstanding a contention of the defendant that the death of the decedent was the result of his own negligent and reckless acts. Slappey v. Sumner, 136 Ga. 692 (1), 71 S.E. 1075.

Although the homicide occurred within the limits of an incorporated town or city, and notwithstanding the provisions of the act of the General Assembly approved August 19, 1918 (Georgia Laws 1918, p. 212), as to the erection of blow posts and the blowing of the whistle, do not apply within the bounds of incorporated towns or cities, there was no error in giving in charge to the jury the entire act, including these provisions, since the act imposed upon the defendant other duties, to which the evidence as related to the time and place in question was applicable, and since the act itself contains an express declaration, which was included in the charge, that the statutory requirement to erect blow posts and to blow the whistle as stated in the act does not apply to incorporated towns or cities. It cannot be reasonably presumed that intelligent and upright jurors could have been misled or should have misapplied the latter express declaration of the statute as precluding any rightful application by them of the provisions of the act relating to blow posts and the blowing of the whistle to the case before them.

The court having instructed the jury that the plaintiff could not recover if the decedent could have avoided his death by the exercise of ordinary care or if his negligence was the proximate cause of his death, and having also fully instructed the jury upon the law of comparative negligence there was no error, especially in the absence of a written request, in the failure of the court to give in charge the express terms of section 2781 of the Civil Code of 1910 to the effect that no person shall recover for injury to himself or his property which is caused by his consent or his negligence. Moreover, the only assignment of error upon the omission is that another correct principle which was charged was error for the reason that this section was not given in connection therewith. See Killian v. State, 19 Ga.App. 750 (2), 92 S.E. 227; Seaboard Air Line Ry. Co v. Devlin, 18 Ga.App. 271 (2), 89 S.E. 378; Louisville & Nashville R. Co. v. McGarity, 139 Ga 472 (2), 77 S.E. 630.

Whether in any event an instruction that in determining the value of the life of the deceased the jury would be limited to a consideration of his earnings as derived from legitimate and lawful occupations solely, in contrast with engagements unlawful in nature, would be proper, there was no error, under the evidence as shown in the record, in omitting such a charge in the absence of a written request properly made.

Assuming (but not deciding) that section 4502 of the Civil Code, to the effect that "damages are given as compensation for injury done," etc., could be applicable in any event in a suit for damages for a negligent homicide, there was no error, in view of correct instructions given as to the measure of damages, and in the absence of a written request therefor, in omitting such a charge in the instant case, more especially since the assignment of error upon such omission complains only that another instruction which was given and is unexcepted to was not accompanied by a charge of this section. Killian v. State, supra.

In view of the context and the charge of the court as a whole, the court did not, for any reason assigned, err in charging as follows: "You could reduce it [[[[[the full value of the life of the deceased] to its present cash value, and your verdict should be for such sum as, if put out at interest at 7 per cent. per annum, and exhausting a part of the principal each year, would produce each year what you find would be the decedent's yearly earnings, and the entire sum would be exhausted at the end of the decedent's expectancy as you find it. In other words, the amount found, with the addition of 7 per cent. legal interest, would accomplish exactly such payments each year throughout the decedent's expectancy as you find that he would have earned during that expectancy and would be exhausted at the end of his expectancy."

This court cannot hold that the trial judge abused his discretion in overruling the motion of the defendant for a new trial.

Additional Syllabus by Editorial Staff.

"Negative evidence" does not amount to no evidence at all, and jurors are not obliged to discard it merely because of the existence of positive evidence in conflict therewith.

Assignment of error objecting that evidence as to railroad's failure to employ watchman or guard at crossing did not relate to time of accident did not raise the objection that it also referred to other times.

Error from Superior Court, Greene County; Jas. B. Park, Judge.

Action by Sibyl Wallis and others, by next friend, against the Georgia Railroad & Banking Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

On March 4, 1921, James Wallis was killed at a public street crossing in the city of Union Point by a train of the defendant railway company. He left no wife surviving, and W. A. Wallis, as the guardian of his five minor children, brought an action for damages for his homicide.

The decedent at the time of his death was traveling in a truck and was in the act of crossing the company's track. The following acts and omissions of the defendant are charged in the petition as negligence: Operating the train at a speed of from 40 to 50 miles per hour in violation of the dictates of ordinary care and prudence, the homicide having occurred in a populous community; failing to keep a proper lookout ahead, and, even after discovering the presence of the truck approaching the crossing, failing to give any signal by bell, whistle, or otherwise, and failing also then to check the speed of the train; the failure of the engineer and fireman to have the train under control; failing to maintain a watchman at the crossing, which was alleged to be in a populous town, well traveled and crossed by several railroad tracks; failing to have at the crossing some electrical or other signaling device or gates. The decedent was alleged to have been of the age of 40 years at the time of his death, with an expectancy of 27.60 years, and earning at the time $1,500 per annum.

The defendant denied all acts of negligence alleged, and further pleaded that the decedent failed to exercise ordinary care and diligence for his own safety in approaching the railroad crossing, that he was at the time traveling at a high rate of speed, and did not look or listen to ascertain whether a train was approaching; that, if he had not been guilty of such negligence, the death would not have occurred; that his own negligence and carelessness, not only in this, but in not having his vehicle under immediate control, was the proximate cause of the homicide.

There was no dispute as to the age of the decedent, and there was evidence tending to support the allegation as to his earning capacity. The evidence as a whole showed the following facts or authorized their inference:

The decedent was returning from Augusta in a truck which was empty or practically so. The body of the truck was built up on its sides by "standards," by which its loading capacity had been increased. It was noisy. A few moments before the decedent was killed he stopped at a filling station at a street corner, and on leaving it he entered upon a street and started in a northerly direction. This street was intersected by the railroad track, which ran generally east and west. The distance from the filling station to the point at which the homicide occurred was 127 feet. There were five tracks to be crossed, and the decedent had passed three of them and was upon the fourth. The train was approaching from his right, traveling in a westerly direction. The railroad depot at which the train would in any event have stopped, was to his left approximately 170 yards, or possibly further, from the center of the street upon which he was traveling. The train was in the range of his possible view at all times...