Jackson v. Seabd. Air Line Ry
| Citation | 78 S.E. 1059,140 Ga. 277 |
| Court | Supreme Court of Georgia |
| Decision Date | 18 July 1913 |
| Parties | JACKSON. v. SEABOARD AIR LINE RY. |
(Syllabus by the Court.)
The verdict is supported by the evidence.
Where the widow of one who was employéd by a railroad company as a flagman to perform service within its switching yards brought suit to recover damages for his alleged tortious homicide by the running of one of the defendant's cars, evidence of the general custom as to the manner of flagging trains at the point where the injury occurred, and of instructions to such flagman as to such custom, was admissible as tending to show that the deceased knew of the custom and the danger to which he was exposed while on duty as a flagman, and whether he exercised that care which an ordinarily prudent man in these circumstances would have exercised for his safety.
[Ed. Note.—For other eases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. § 274.*]
It is not error for a trial judge, before beginning 'his instructions to the jury, to tell them of the obligation resting upon the court and upon the jurors in the trial of a case, and to call their attention to the necessity of giving close attention to the law as given them by the court, and to return "a true verdict, according to the opinion they entertain of the evidence produced to them, without favor or affection to either party, and according to the law as given in charge by the court."
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 483, 485; Dec. Dig. § 217.*]
It was not error for the court in charging the jury to read to them the original petition and the amended petition, where the amend ment worked a dismissal of the case as to one of the defendants, and the original petition was amended in several other material parts, and where there was no offer on the part of the plaintiff's attorneys to remodel the papers, and where the court instructed the jury that the part of the original petition and the amendments that had been stricken were not a part of the plaintiff's statement of the case in writing, and that the pleadings would go out with the jury, and explained to them how the amendments were related to the original petition.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 527-530; Dec. Dig. § 233.*]
In view of the evidence as to the character and surroundings of the locality where the injury occurred, it was not improper for the court to submit to the jury the question of whether a municipal ordinance regulating the speed of trains within the city limits was applicable at that particular locality.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323-327; Dec. Dig. § 136.*]
None of the charges complained of embody any error requiring a new trial.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]
Error from Superior Court, Fulton County; W. D. Ellis, Judge.
Action by Ruth Jackson against the Western & Atlantic Railroad Company and the Seaboard Air Line Railway. Action dismissed as to the first defendant, verdict for plaintiff as to the second defendant, motion for new trial by plaintiff for insufficiency of the verdict overruled, and she brings error. Affirmed.
Westmoreland Bros., of Atlanta, for plaintiff in error.
Moore & Pomeroy, W. G. Loving, Brown & Randolph, and Parker & Scott, all of Atlanta, for defendant in error.
HILL, J. Mrs. Ruth Jackson, then a minor, by her next friend brought suit against the Western & Atlantic Railroad Company and the Seaboard Air Line Railway, to recover damages for the homicide of her husband, W. P. Jackson, alleging that by the concurrent negligence of both defendants her husband was killed. The case against the first-named defendant was dismissed, and an order taken amending the petition against the Seaboard Air line Railway, and the case was tried solely against the latter. The trial resulted in a verdict for the plaintiff for $2,500. Being dissatisfied with this verdict, the plaintiff made a motion for a new trial, which was overruled, and she excepted.
1. The first ground of the motion is that the verdict is inadequate and is not sustained by the evidence. It is argued that if the plaintiff is entitled to recover at all, she ought to recover a sum in excess of $2,500, and that there is no evidence to support the amount found by the jury. Our Civil Code, § 2781, provides: There was evidence tending to show that the plaintiff's husband was killed under circumstances which showed negligence on his part and on the part of the defendant. The jury, therefore, were authorized to find that the recovery should be decreased in proportion to the contributory negligence of the husband in causing his death. We think the verdict is supported by the evidence.
2. The fourth to the fourteenth grounds, inclusive, of the motion for a new trial complain that the court erred in overruling objections to certain evidence offered by the defendant as to "the universal custom out there at this locality in those yards as to what a flagman should do in order to protect the rear of his train." The numerous questions objected to varied as to form, but nearly if not all of them related to "the custom" as to the duty of a flagman in the locality where the homicide occurred, and what instructions were given to the deceased flagman as to "the dangers surrounding yard work and places that he would have to look out for." It is insisted that the court erred in allowing the questions and answers as to the custom of flagging trains, and in allowing witnesses to testify as to what a flagman should or should not do, or that the engineer would not pay any attention to flagmen on any other track than the one on which his train was. The plaintiff offered the evidence of several witnesses which tended to show that the plaintiff, in the line of his duty, was correctly flagging the train, and that he was on the right track. It was competent, therefore, for the defendant to show what the general custom was in the yards where the homicide occurred with reference to flagging trains, and that the plaintiff's husband had been instructed as to and knew of the custom about which the witnesses testified, and that his position on a railroad track other than the one on which his train was was in violation of that custom. This evidence was admissible as tending to show that the deceased, knowing of the custom and of the daily and hourly danger to which he was thus exposed while on duty as a flagman, should have exercised that care which an ordinarily prudent man would have exercised for his own safety.
3. Complaint is made of the following preliminary instruction to the jury: ...
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