Hines v. Mccook, (No. 11446.)

Decision Date15 June 1920
Docket Number(No. 11446.)
Citation103 S.E. 690,25 Ga.App. 395
PartiesHINES, Director General of Railroads, et al. v. McCOOK.
CourtGeorgia Court of Appeals

Rehearing Denied July 14, 1920.

(Syllabus by the Court.)

Error from City Court of Albany; Clayton Jones, Judge.

Action by Nora McCook, by next friend, against Walker D. Hines, Director General of Railroads, and H. A. McGee, for wrongful death. Judgment for plaintiff against both defendants, and they bring error. Affirmed as to defendant Hines and reversed as to defendant McGee.

Peacock & Gardner and Pope & Bennet, all of Albany, for plaintiffs in error.

E. E. Cox, of Camilla, and Lippitt & Burt, of Albany, for defendant in error.

BROYLES, C. J. Mrs. Nora McCook brought her joint suit against Walker D. Hines, Director General of Railroads, and H. A. McGee, for the alleged negligent homicide of her husband at a railroad crossing. A verdict in favor of the plaintiff against both defendants was returned, and the defendants' separate motions for a new trial were overruled, and to this judgment they excepted. Counsel for the plaintiffs in error, in their brief and in their oral argument before this court, expressly abandoned every assignment of error except as to the overruling of the fourth, fifth, and sixth special grounds of the motions for a new trial.

The fourth ground in effect complains that the court erred in stating to the jury that the plaintiff alleged that the defendants, the Director General of Railroads and McGee, were negligent in establishing and maintaining an unsafe and dangerous crossing. This charge was clearly erroneous and prejudicial so far as the defendant McGee was concerned, since the plaintiff in her petition did not charge McGee with this particular act of negligence, but specifically limited it to the other defendant, the Director General of Railroads; and, as it is impossible to know on which particular act of negligence alleged in the petition the verdict against the defendant McGee was based, this error requires a new trial for him.

The charge is further complained of as erroneous as against the other defendant, the Director General of Railroads, for the reason that the undisputed evidence showed that the deceased was well acquainted with the dangerous crossing, and that he voluntarily, and not in an emergency, attempted to use it, and that therefore he was himself guilty of such gross negligence as to bar the plaintiff from a recovery on this particular allegation of negligence. Counsel for the Director General of Railroads earnestly insist that under such circumstances it was harmful error against that defendant for the court to merely instruct the jury that one of the contentions of the plaintiff was that the defendant was negligent in maintaining an unsafe and dangerous crossing. We cannot agree with this contention...

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