Ocilla Southern R. Co v. Mcinvale

• Citation: 26 Ga.App. 106,105 S.E. 451
• Decision Date: 23 December 1920
• Docket Number: (No. 11656.)
• Parties: OCILLA SOUTHERN R. CO. v. McINVALE.
• Court: United States Court of Appeals (Georgia)

26 Ga.App. 106

105 S.E. 451

OCILLA SOUTHERN R. CO.

v.McINVALE.

(No. 11656.)

Court of Appeals of Georgia.

Dec. 23, 1920.

(Syllabus by Editorial Staff.)

Error from Superior Court, Ben Hill County; O. T. Gower, Judge.

Action by I. McG. McInvale against the Ocilla, Southern Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Wall & Grantham, of Fitzgerald, and Quincey & Rice, of Ocilla, for plaintiff in error.

F. G. Boatright, of Cordele, and A. J. McDonald, of Fitzgerald, for defendant in error.

BBOYLES, C. J. [1] 1. Where a ground of an amendment to a motion for a new trial is not approved as true by the judge, but is approved with certain material qualifications, it will not be considered by this court.

"If the judge approve the ground of the amendment, without more, this is a sufficient approval; but an express approval with certain added qualifications is not an unqualified approval of the ground as true." McLean v. Mann, 148 Ga. 114, 95 S. E. 985 (1), and citations; Griggs v. State, 17 Ga. App. 301, 88 S. E. 726, and citations; New v. State, 25 Ga. App. —, 105 S. E. 50.

Under this ruling grounds 1, 2, 6, 7, 8, and 9 of the amendment to the motion for a new trial cannot be considered.

2. On a trial of an action for damages for personal injuries against a railroad company, it is not error for the court to charge that, if the plaintiff has shown that her injuries were caused by the running of the locomotive, cars, etc., of the defendant railroad company, the burden is then upon the company to establish "by a preponderance of the evidence" that its employees, agents, and servants in charge of the train were in the exercise of all ordinary care and diligence. Georgia Southern & Florida By. Co. v. Young Investment Co., 119 Ga. 513, 46 S. E. 644 (1).

3. The charge to the effect that, when a plaintiff has proved that he was injured by the running of the defendant railroad company's locomotives or cars, a presumption arises that the defendant was at fault "in each and every one of the ways alleged in the plaintiff's petition, " was a correct statement of the law, and was not error for any reason assigned. Ellenberg v. Southern By. Co., 5 Ga. App. 389, 63 S. E. 240 (1); Atlantic Coast Line R. Co. v. Moore, 8 Ga. App. 185, 68 S. E. 875 (2b), Georgia Southern & Florida Ry. Co. v. Thornton, 144 Ga. 481 (2), and numerous cases there cited on page 484, 87 S. E. 388.

(a) The mere fact that the petition may have contained "inconsistent" allegations of negligence would not affect the above ruling, since the defendant failed to avail itself of the offices of a timely demurrer to eliminate those allegations which were claimed to be inconsistent. See, in this connection, Atlantic Coast Line R. Co. v. Moore, supra, 8 Ga. App. on page 192, 68 S. E. 875.

4. Under the facts of the case and the charge of the court as a whole, it was not error, for any reason assigned, to give the following instructions to the jury:

"(1) There must be fixed on the line of railroad, and at a distance of 400 yards—this being a Code section, a provision of our law, rather— at a distance of 400 yards from the center of such road crossing, referring to public cross ings and street crossings, and on each side thereof, a post, and the engineer shall be required, whenever he shall arrive at either of said posts, to blow the whistle of the locomotive until it arrives at the public road or street, as the case may be, and to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road or street; provided that within the corporate limits of the cities, towns, and villages of this state the several railroad companies shall not be required to blow the whistle of their locomotive on approaching crossings or public roads in said corporate limits, but in lieu thereof the engineer of said locomotive shall be required to signal the approach of their trains to such crossings and public roads in said corporate limits by tolling the bell of said locomotive."

"(2) The sections of the Code which I have just...