Georgia Ry. & Power Co. v. Shaw
| Decision Date | 19 September 1929 |
| Docket Number | 19192. |
| Citation | 149 S.E. 657,40 Ga.App. 341 |
| Parties | GEORGIA RY. & POWER CO. v. SHAW. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In determining whether an excerpt from a charge of the court contains an erroneous instruction to the jury, the niceties and the literalities of language must be disregarded. The excerpt must be construed as conveying to the jury that meaning which the jury must necessarily have understood it to convey; and where the excerpt is reasonably susceptible to two constructions, the sense in which it must have been understood by the jury may be determined from the other provisions of the charge. Upon the trial of a suit against a street railway company to recover damages for personal injuries alleged to have been received as a result of the operation of a street car of the defendant, a charge of the court, after stating the law with reference to the presumption of liability arising against the defendant upon proof of the injury, as provided in section 2780 of the Civil Code of 1910, that "this presumption of law *** is not a conclusive presumption; it is what is known as a rebuttable presumption, [and] that means that upon proof of injury, as stated it is not conclusive, but may be rebutted by evidence offered by the defendant, or the evidence submitted by the plaintiff, or from a consideration of all the evidence [and] if it does appear from the evidence that the agents of the company have exercised all ordinary and reasonable care and diligence, then this presumption would be rebutted, and you would not regard this presumption, but would proceed to consider the case on the allegations of negligence made by the plaintiff, and [on] the answer of the defendant," is not subject to the objection that it in effect states that if this presumption has been rebutted by proof to the satisfaction of the jury that the agents of the defendand had exercised the required care and diligence, this presumption should not only be disregarded, but that the jury should nevertheless "proceed to consider the case on the allegations of negligence made by the plaintiff and [on] the answer of the defendant," where it appears that the court, immediately after giving this part of the charge stated to the jury that "the plaintiff, in order to recover, must recover for the acts of negligence alleged by him to have occasioned the injury, [and that] the plaintiff must recover, if at all, only by proof *** of negligence ***" and where the court throughout the remaining portion of the charge instructed the jury that the plaintiff could only recover upon proof, to the satisfaction of the jury, that the defendant was negligent as alleged, that this negligence was a direct and proximate cause of the plaintiff's injury, and that the burden rested upon the plaintiff to establish this negligence, and also that the court instructed the jury as to the law of comparative and contributory negligence, and also as to the law with reference to the ability of the plaintiff to avoid the injury by the exercise of ordinary care, and finally instructed the jury that if the plaintiff has not proved his case as indicated by the court, a verdict should be returned for the defendant. The excerpt excepted to could have been understood by the jury only as stating that, upon the introduction of evidence which would authorize the inference that the agents of the defendant company had exercised the required care and diligence, the presumption of liability, which had arisen upon proof that the injury resulted from the operation of the defendant's street car, would disappear from the case and there would be no presumption against the defendant, and that it would then be the duty of the jury to proceed further to the consideration of the case "on the allegations of negligence made by the plaintiff, and [on] the answer of the defendant."
A charge that the plaintiff in a suit to recover damages for personal injuries "was not bound to assume that the defendant would be negligent, and that, when the law required diligence on the part of the defendant the plaintiff would not be expected to assume that the defendant would be negligent," was not subject to the exception that it withdrew from the jury the question whether the plaintiff was negligent in failing to anticipate the negligence of the defendant, where the court immediately thereafter instructed the jury as to the duty resting upon a person to avoid the negligence of another after it became apparent, or when he in the exercise of ordinary care could apprehend it, and that the question as to whether the respective parties were negligent was for determination by the jury.
In a suit to recover damages for personal injuries, a charge which instructed the jury that where both parties were negligent, but where "the negligence of the plaintiff consisted of some act or omission on his part before the negligence of the defendant became apparent, or [not "and"] before an ordinarily prudent person would have had reason to apprehend the existence of the defendant's negligence," the negligence of the plaintiff would not necessarily preclude a recovery, but would authorize a reduction in the amount of damages recoverable, was not error in that the court stated disjunctively, and not conjunctively, the condition upon which the negligence of the plaintiff, in failing to avoid the consequences of the defendant's negligence, would not preclude a recovery, but would authorize a reduction in the amount of damages recoverable.
The testimony of a witness, given on redirect examination, that he had on several occasions extrajudicially made the same statement which he had testified to on direct examination, was, if error, harmless in this case.
It was not error to permit a witness on cross-examination to state the number of people in a street car, for the purpose of showing that his view might have been obstructed.
Although a witness had never experimented to determine how far a person sitting in the middle of a street car could see a man in front of the car, the admission in evidence of the opinion of the witness as to this distance was, if error, harmless.
The evidence authorized the verdict found for the plaintiff.
(Additional Syllabus by Editorial Staff.)
The expression "rebutting," or the "rebuttal" of a presumption is often used with a twofold signification; one in the sense of establishing to the satisfaction of the jury facts which disprove the presumption, and the other in the sense of the mere introduction of evidence sufficient to contradict the presumption.
Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.
Suit by L. L. Shaw against the Georgia Railway & Power Company. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Affirmed.
Hugh Burgess, of Decatur, and Colquitt & Conyers, of Atlanta, for plaintiff in error.
Reuben R. & Lowry Arnold and B. P. Gambrell, all of Atlanta, for defendant in error.
L. L. Shaw instituted suit against Georgia Railway & Power Company, to recover damages for personal injuries alleged to have been received by him and caused by the negligence of the defendant in the operation of its street car along its track in a public street in the city of Atlanta, and running into the plaintiff while he was standing by the side of the track engaged in placing things in an automobile which was standing in the street by the side of the street car track. A verdict was rendered for the plaintiff in the sum of $6,500. The defendant made a motion for a new trial upon the grounds that the verdict was without evidence to support it, alleged errors in the charge, and in rulings upon the admissibility of testimony. This motion was overruled, and the defendant excepts.
As counsel for the plaintiff in error in their brief virtually concede that the evidence supports the verdict found for the plaintiff, but insist that, in view of the nature of the evidence and the size of the verdict, the alleged errors could not have been harmless, it is unnecessary to review the evidence or to refer to it otherwise than to state that it presented issues of fact as to the negligence, both of the plaintiff and the defendant, and authorized the inference that the defendant was negligent and that this negligence proximately contributed to the plaintiff's injury, and that the verdict in the amount found for the plaintiff was authorized by the evidence.
1. The court having charged that a presumption of liability arises upon proof that an injury results from the operation of the cars of a railway company, as provided in section 2780 of the Civil Code of 1910, further stated in the charge as follows Exception is made to this charge as being error, in that it in effect states that, if this presumption has been rebutted by evidence, to the satisfaction of the jury, that the agents of the defendant had exercised the required care and diligence, this pressumption should be...
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