Macon, D. & S.R. Co. v. Musgrove
| Decision Date | 18 August 1916 |
| Docket Number | 596. |
| Citation | 89 S.E. 767,145 Ga. 647 |
| Parties | MACON, D. & S. R. CO. v. MUSGROVE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where suit was brought by one as an employé of a railroad company engaged in interstate commerce, to recover damages for a personal injury, under Act Cong. April 22, 1908, c. 149, 35 Stat. 65, Act April 5, 1910, c. 143, 36 Stat 291 (U. S. Comp. St. 1913, §§ 8657-8665), known as the federal Employers' Liability Act, on the trial it was error, over objection, to allow the plaintiff to testify that he had a wife and child.
Where there was evidence that the plaintiff lost his arm by reason of the injury complained of, and was unfitted for work of the character which he had previously done, and that he had done some work of different sorts, there was no error in admitting evidence that since the December preceding the trial he had had no active employment, coupled with the statement that he had attempted to get work during that period, but had been unable to do so.
Where the presiding judge in his charge informed the jury that they would have the petition and answer in the jury room with them, and that such papers contained the contentions of the parties, respectively, the use of the expression that "the plaintiff in his declaration sets out the reasons why he is entitled to recover" furnishes no cause for reversal. The jury could not have understood the judge as asserting that the plaintiff was entitled to recover.
In the absence of a request to charge more fully on the subject, the instruction as to the allegations of the petition and the admission or denial of them in the answer, or the statement that the defendant could neither admit nor deny certain allegations, was not subject to the criticism that he did not sufficiently instruct the jury as to the effect of an averment in the answer that the defendant could neither admit nor deny certain allegations of the petition.
In a suit by an injured employé of a railroad company engaged in interstate commerce, based on the federal Employers' Liability Act of 1908 (amended in 1910), if the evidence authorized a charge on the subject of the doctrine of the assumption by an employé of risks arising from negligence of the master, it was error to charge unqualifiedly that the employé never assumes any risk or danger that grows out of the negligence of the master.
In a suit of the character indicated above, and especially under the evidence, there was no error in refusing a request to give the following to charge: "If you should find from the evidence that the plaintiff, Musgrove, had the choice of two ways of getting on his cab, the one safe and the other dangerous, I charge you that he was under a duty to the railroad company to select the safe way; and if, instead of so doing, he selected the dangerous way, and that he knew or ought to have known of the danger, he cannot recover of the railroad company for injuries thus sustained."
Error from Superior Court, Toombs County; R. N. Hardeman, Judge.
Action by L. E. Musgrove against the Macon, Dublin & Savannah Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed.
Charge on averments of pleadings and allegations in answer, that defendant neither admitted nor denied some of averments of petition, held not insufficient as to such allegations, in absence of request to charge more fully.
Minter Wimberly and Akerman, Akerman & McManus, all of Macon, and W. L. Wilson, of Mt. Vernon, for plaintiff in error.
R. R. Arnold and Colquitt & Conyers, all of Atlanta, for defendant in error.
Musgrove brought suit against the Macon, Dublin & Savannah Railroad Company to recover damages for a personal injury. As originally brought, the petition contained two counts. The plaintiff, however, elected to rely only on the first count, which was based on the federal Employers' Liability Act. He recovered a verdict for $3,500. A new trial was refused and the defendant excepted.
1. In a suit by an employé of a railroad company, under the federal Employers' Liability Act (enacted in 1908 and amended in 1910), for a personal injury to himself, it was error to permit him to testify that he had a wife and child. Relatively to his right or lack of right to recover against the railroad company, or the amount of such recovery, it was immaterial whether he had a wife, or a dozen children, or none. Such evidence could throw no light on the right of recovery, and could have no effect except possibly to tend to prejudice the minds of the jury on the ground that the wife and child were cut off from their means of support by reason of the injury to the husband and father. Whatever may be the rule in a suit by a widow for the homicide of her husband or by children for the homicide of their father (and as to that we are not now called on to rule), in a suit by a man for a personal injury to himself such evidence is inadmissible. On the subject of a suit for a homicide, see Central of Georgia Ry. Co. v. Prior, 142 Ga. 536 (2), 537, 83 S.E. 117; Darby v. Moore, 144 Ga. 758, 87 S.E. 1067.
2. If it stood alone, evidence that the plaintiff had had no active employment from the 1st of December preceding the trial until the trial would not be admissible. But where this was coupled with evidence that he had lost his arm by reason of the injury complained of, unfitting him for work of the character which he had previously been doing and that he had attempted to get work during the period named but had been unable to do so it was admissible as throwing some light on the question of loss resulting from the injury. If there was a dullness in financial or commercial activities at that time, which might have affected the obtaining of employment, this might be shown; but it would not render the evidence inadmissible.
3. Where the judge informed the jury that they would have the plaintiff's petition and the defendant's answer...
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Underwood v. Atlanta & W. P. R. Co.
...of recovery, and could have no effect, except possibly to tend to prejudice the minds of the jury * * *.' Macon, Dublin & S. R. Co. v. Musgrove, 145 Ga. 647, 648, 89 S.E. 767, 768. It is also 'a familiar principle that, when a physical injury has been sustained, the person injured may recov......
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Willis v. Hill, 42881
...Wiggins, 113 Ga. 842(4), 39 S.E. 551; Central of Ga. Ry. Co. v. Prior, 142 Ga. 536, 537(2), 83 S.E. 117; Macon, Dublin & Savannah R. Co. v. Musgrove, 145 Ga. 647, 648(1), 89 S.E. 767; Summer v. Hogsed, 41 Ga.App. 207(2), 152 S.E. 260; Underwood v. Atlanta & West Point R. Co., 105 Ga.App. 34......
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Bulloch County Hospital Authority v. Fowler
...see Central of Ga. R. Co. v. Prior, 142 Ga. 536, 537(2), 83 S.E. 117; Darby v. Moore, 144 Ga. 758, 87 S.E. 1067; Macon, D. & S.R. Co. v. Musgrove, 145 Ga. 647(1), 89 S.E. 767; Western & Atlantic R. v. Gray, 172 Ga. 286, 305(a), 157 S.E. 3. In an effort to obtain clarification and a definiti......
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Western & A. R. Co. v. Davis, s. 43235
...and was improperly allowed.' Central of Georgia Ry. Co. v. Prior, 142 Ga. 536, 537(2), 83 S.E. 117. Cf. Macon, Dublin & Savannah R.R. Co. v. Musgrove, 145 Ga. 647, 648, 89 S.E. 767; Central R.R. v. Moore, 61 Ga. 151, 152. See also Underwood v. Atlanta & West Point R.R. Co., 105 Ga.App. 340,......