Millen & S.W.R. Co. v. Allen

• Decision Date: 15 May 1908
• Parties: MILLEN & S.W. R. CO. v. ALLEN.
• Court: Georgia Supreme Court

61 S.E. 541

130 Ga. 656

MILLEN & S.W. R. CO. v. ALLEN.

Supreme Court of Georgia

May 15, 1908

Syllabus by the Court.

The charge of the court below states that the contentions of the parties fairly and with sufficient fullness and clearness.

An exception to the charge of the court is not sufficiently specific and definite to raise any question for determination, where it assigns error generally as follows "Because the entire charge of the court, in charging the law applicable to the facts of the case, is error for this reason: That in each place, in referring to the negligence of the railroad company, using the expression 'no negligence,' and thereby causing the jury to believe that any negligence of the railroad company would be a good ground upon which the plaintiff could recover, and does not confine the negligence of the railroad company, if there was negligence, to the act of negligence set out in the plaintiff's petition, to wit, the leaving of the railroad spike on the track between the service train and the derailment of the passenger train."

The court below having charged the jury: "If the plaintiff recovers in this case, I charge you that she must recover upon proof of acts of negligence set out and alleged in the declaration"-it was not necessary for the court to add this qualification to every proposition of law which he charged, when instructing the jury as to what state of facts would authorize them to find for or against the defendant.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 513.]

It is not error to refuse a written request to charge, when such request, so far as it is legal and pertinent, has already been sufficiently covered in the court's general charge.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

If the court undertakes to instruct the jury as to the methods by which a witness may be impeached, he should instruct them as to all the methods of impeachment, so far as such instructions are authorized by the evidence; but his failure to do so will not require the granting of a new trial, where no written request was made to charge the jury as to the mode of impeachment omitted by him from his instructions upon the subject of impeachment of witnesses.

The assignment of error upon the ruling of the court excluding certain evidence was without merit; it appearing that the evidence was clearly irrelevant.

The evidence in the case was sufficient to support the verdict.

Error from Superior Court, Emanuel County; B. T. Rawlings, Judge.

Action by Carrie L. Allen against the Millen & Southwestern Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

which were substantially covered by the instructions given.

Mrs. Carrie L. Allen brought her action for damages against the Millen and Southwestern Railroad Company for the negligent killing of her husband. Her petition alleged that her husband was, at the time he was killed, in the employment of the railroad company as engineer. About midway between Graymont and Summit, stations on the defendant's line, the engine which he was operating was derailed, and turned over, and, in falling, caused injuries from which he died. During the morning of the derailment and prior thereto employés of the railroad company were working on the track at the point of derailment, and, in connection with said work, were using a hand car. This hand car was removed from the track in order that a service train might pass. The service train came along shortly before the passenger train, which the deceased was running, reached said point. After the service train had passed, and before the passenger train had reached the place of derailment, the trackhands returned to work on the track, replacing the hand car at the point of derailment. The train hands, in leaving the place of derailment shortly before the arrival of the passenger train, left the track in an unsafe condition; a railroad spike having been negligently left on one of the rails of the track at that place. This negligence of the defendant caused the injuries to be inflicted upon the petitioner's husband which resulted in his death. Said derailment occurred on a curve in the tracks, and the deceased, by the exercise of ordinary care and diligence, could not have discovered the unsafe condition of the track in time to have avoided the derailment. The deceased, at the time of his death, was 43 years of age, and was receiving $75 per month for his services as engineer. The defendant denied the alleged negligence on its part, and alleged a failure on the part of the plaintiff's husband to exercise due care and caution. A verdict having been found in the plaintiff's favor for $7,500, the defendant filed a motion for a new trial, which was overruled, and it excepted.

Saffold & Larsen, for plaintiff in error.

Lamar & Callaway and Smith & Kirkland, for defendant in error.

BECK J.

1. Several grounds of the motion for a new trial in this case embrace lengthy extracts from the court's charge, which contained a statement of the respective contentions of the plaintiff and defendant. And the exceptions taken in the grounds of the motion referred to are that those portions of the charge failed to state the contentions of the defendant with sufficient fullness, and presented too prominently, and with too much stress and detail, the contentions of the plaintiff, and ignored and minimized the contentions of the defendant. But an examination of the whole charge shows that considering it in its entirety, the judge fairly stated the contentions of both sides. ...