Parrish v. Central of Georgia Ry. Co.
| Decision Date | 15 November 1926 |
| Docket Number | 17165. |
| Citation | 135 S.E. 762,36 Ga.App. 133 |
| Parties | PARRISH v. CENTRAL OF GEORGIA RY. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The judgment excepted to in this case was rendered in term in the superior court of Fulton county, on November 24, 1925. The bill of exceptions was presented to the trial judge on January 21, 1926, and was certified by him on January 29 1926. It contained the statement that it was presented "within the period allowed by law; the term of said court lasting more than 30 days." This recital was verified by the judge's certificate as being true. Held: The bill of exceptions is not subject to dismissal, either upon the ground that it did not appear to have been presented within 30 days from the adjournment of the court, or upon the ground that it did not appear to have been certified "within 30 days from said adjournment."
The amendment to the petition, which the court allowed to be made subject to demurrer, was not subject to the grounds of the demurrer thereafter urged; and it was error to strike the amendment in response to the demurrer.
The maxim res ipsa loquitor may, in certain extraordinary circumstances, be applicable in negligence cases between master and servant, including cases under the federal Employer's Liability Act (U. S. Comp. St. §§ 8657-8665). Under the evidence introduced, the jury would have been authorized to apply the maxim in this case, and to infer that the defendant was negligent as alleged in the plaintiff's petition. There was enough in the plaintiff's evidence to carry the case to the jury, and the court erred in awarding a nonsuit.
Error from Superior Court, Fulton County; E. D. Thomas, Judge.
Suit by L. C. Parrish against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.
Hugh Cobb and Geo. & John L. Westmoreland, all of Atlanta, for plaintiff in error.
Little Powell, Smith & Goldstein and Kendrick L. Scott, all of Atlanta, for defendant in error.
In this action under the federal Employer's Liability Act. (U. S Comp. St. §§ 8657-8665), by Parrish against the Central of Georgia Railway Company, the court on demurrer struck an amendment to the plaintiff's petition, which had been allowed, subject to demurrer, and at the close of the plaintiff's testimony awarded a nonsuit. The case is here upon exceptions by the plaintiff to these rulings. The original petition alleged: The plaintiff was a member of the defendant's switching crew in what is known as its "industry yard," in Fulton county; the work of this crew being "to make up and distribute trains in said yards." During a certain night the plaintiff, while in the line of his duty, was walking between tracks No. 2 and No. 3. A freight train of the defendant, composed of fruit cars, proceeded along track No. 2, and, as it was passing the plaintiff was struck on his head by an open door of one of the cars, "which was swinging out 3 1/2 to 4 feet beyond the track upon which the said train was running," with the result that the plaintiff sustained described injuries. The plaintiff was injured through "the negligence of the defendant in allowing the door of said freight train to swing open when it knew, or ought to have known, that its agents or servants were likely to be along or near the track of said train at the point where the plaintiff was struck."
The amendment to the petition was:
"That the defendant was negligent in failing to make an inspection of the door of the fruit car which swung open and hit plaintiff, as a proper inspection of the same at the point of loading would have disclosed the defective condition and want of repair of said door, and that in its bad condition it was likely to fly open and thereby endanger the life and limbs of the plaintiff or other servants of the defendant engaged in their service along the line of the said defendant, similarly situated as the plaintiff was at the time he was struck by the open door, and that, if said car door had been in good condition and repair, the same would not have swung open; that the door of said car was old and the latches thereon were insecure and out of repair, which caused the said door to fly open."
The grounds of the defendant's demurrer to this amendment were: The allegations thereof are contradictory of the averment of the petition to the effect that the door was negligently left open by the defendant; and the amendment does not show in what way the door was defective nor in what manner the defendant was negligent, either in allowing "the alleged defects to exist, or in failing to discover same," or wherein the defendant failed to make an inspection of the door, or that an inspection would have revealed the alleged defective condition, or that in its alleged bad condition the door was likely to fly open.
The judgment excepted to was rendered on November 24, 1925. The bill of exceptions was presented on January 21, 1926, and contained the statement that it was presented "within the period allowed by law, the term of said court lasting more than 30 days," which statement was duly verified by the usual certificate of the presiding judge to the bill of exceptions. This certificate was signed by the judge on January 29, 1926. The defendant in error has moved to dismiss the bill of exceptions, upon the grounds that it does not appear that the bill was presented within 30 days after the adjournment of the term of the court in which the case was tried, and it does not appear that the bill was certified "within 30 days from said adjournment." The evidence will be referred to in the opinion.
1. Where it appears from the bill of exceptions that the same was tendered within the time required by law, a mere failure on the part of the presiding judge to sign it within the time prescribed is not cause for dismissal. Civil Code 1910, § 6187. A bill of exceptions to review a judgment rendered in term must in every case be tendered to the trial judge within 30 days from the adjournment of the court, and must be tendered within 60 days from the judgment complained of, where the court is not adjourned within 30 days from its organization. Civil Code 1910, § 6152; Birmingham Co. v. Chisholm, 162 Ga. 501, 134 S.E. 301. It must affirmatively appear from the bill of exceptions, or the entries thereon, or the record, that the bill was presented within the time prescribed by law. Crawford v. Goodwin, 128 Ga. 134 (1), 57 S.E. 240. But where, as in the present case, the bill of exceptions affirmatively recites that it was tendered within the period allowed by law, and where the trial judge certifies the bill in the usual manner, and where nothing to the contrary appears, it will be assumed in this court that it was tendered in due time. Taliaferro v. Smiley, 112 Ga. 62 (1), 37 S.E. 106; Evans v. State, 112 Ga. 763, 38 S.E. 78. The statement in the bill of exceptions that the term of the court lasted more than 30 days was not contradictory of the statement that the bill of exceptions was presented within the period allowed by law; that is, within 30 days from the adjournment. Both these statements could be true. Hence there is nothing to impeach the recital in the bill, certified to be true, that it was presented in time. From the dates set forth, the presentation was in 60 days from the judgment excepted to. Thus it appears that both limitations as to time of presentation were complied with. This case is to be distinguished from Newton v. Burtz, 44 Ga. 599; Walters v. Morgan, 46 Ga. 568; Bush v. Keaton, 65 Ga. 297 (2). In none of these cases was there a recital in the bill of exceptions that it was presented within the period allowed by law. The present case is also different from the Chisholm Case, supra, in that it affirmatively appeared from the date set forth in the bill of exceptions in that case that the court must have adjourned by operation of law more than 30 days prior to the tender of the bill of exceptions for certification. There is no merit in the motion to dismiss the bill of exceptions.
2. The amendment, when considered in connection with the allegations of the original petition, was not subject to the objections interposed thereto in the demurrer. There is no contention that it set forth a new and distinct cause of action. See City of Columbus v. Anglin, 120 Ga. 785 (5), 48 S.E 318; Georgia Co. v. Reeves, 123 Ga. 697 (1), 51 S.E. 610; Bowen, Jewell & Co. v. Adams, 129 Ga. 688 (2), 59 S.E. 795. The demurrer was a general attack upon the amendment as a whole. There was no specific demurrer to any part of it for a want of sufficient particulars. The allegation that "the door of said car was old and the latches thereon were insecure and out of repair, which caused the said door to fly open," was a sufficient specification of a defect, as against the general criticism in...
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