Pickett v. Cent. Of Ga. Ry. Co

• Decision Date: 16 May 1912
• Citation: 74 S.E. 1027,138 Ga. 177
• Parties: PICKETT. v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Supreme Court

74 S.E. 1027

(138 Ga. 177)

PICKETT.

v.CENTRAL OF GEORGIA RY. CO.

Supreme Court of Georgia.

May 16, 1912.

(Syllabus by the Court.)

1. Carriers (§ 317*)—Injury to Passengers —Evidence.

In an action against a railroad company by a passenger for an injury received by him while alighting from a train at a place a short distance from the depot or station, evidence tending to show a custom of alighting from trains at such place, with the knowledge or consent of the carrier, is admissible.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1295-1306; Dec. Dig. § 317.*]

2. Damages (§ 216*)—Personal Injuries—-Instructions.

Where, in an action to recover on account of a personal injury, it is sought to recover damages on account of loss of time, physician's bills incurred, pain and suffering, and permanent impairment of capacity to labor and earn money, the charge should not confuse the methods for estimating the different elements of damages, or be so shaped as to lead the jury to conclude that there can be no recovery, if the injury to the plaintiff is not permanent.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.*]

3. Carriers (§ 339*)—Injury to Passengers—Contributory Negligence.

There was no error in charging to the effect that, if the injured person and the company were equally negligent in the transaction, there could be no recovery.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. & 1353; Dec. Dig. § 339.*]

Error from Superior Court, Marion County; S. P. Gilbert, Judge.

Action by J. M. Pickett against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

J. M. Pickett brought suit against the Central of Georgia Railway Company to recover damages for a personal injury. He claimed that while he was alighting from a train of the defendant the engineer caused it to move forward suddenly and without warning, throwing him down and injuring him. The place where the injury occurred was not immediately at the station which was his point of destination, but at a point a short distance before reaching it, and where the train, which was composed of freight cars and passenger cars, stopped to shift a freight car onto a siding. The plaintiff testified: "I thought it had stopped for me to get off. * * * I have got off there a thousand times." And again: "They had been in the habit of stopping for people to get off right where I got off at." The conductor testified: "The rule is to call station when you stop at a station. We did not call it when we stopped at the switch, because we did not stop there for passengers to get off." The jury found for the defendant. The plaintiff moved for a new trial on the following, among other, grounds:

(1) Because the court refused to allow a witness for the plaintiff to answer the question: "What is the custom of stopping that train there, when there is a long freight train, for passengers to get off?" The jury were caused to retire, and the witness stated that he would testify as follows: "I got off there going this way very frequently, and going from Columbus also. There is a very heavy grade from Kinchafoonee creek, about a mile and a half above there to this place, just about all they can pull; and almost invariably the conductor requests, if they have got any freight to set or any cars, they request, when they stop there, that the passengers get off. Now, when there is no freight to stop there, they pull up till the passenger car gets up even with the station, or by the road. There is a road crossing just west of there, just right at it. If the engine has got to stop there to leave any freight car or any freight, I don't think I ever came in my life but that the conductor requested that we get off down near that little trestle. The grade is so heavy, if they have to leave a car or reduce freight and then pull up to stop for passengers to get off, it would make a considerable delay, because the grade coming this way is so heavy. When they go the other way, it is a downgrade. I don't think I ever got off at the station in my life, when they left any freight there, but what the conductors would request us to get off down there; and that is right close to a little trestle just beyond the station from here; and it was their custom, whenever they had freight to put off, to let them get off down there." The court rejected this evidence.

(2) Because the court charged as follows: "The plaintiff in this case claims general damages for pain and suffering and for in juries alleged to have [been] done him by the defendant General damages are such that the law presumes to flow from any tortious acts, and may be recovered without proof of any amount. Damages are given as compensation for injury done; and generally this is the measure, where the injury is of a character capable of being estimated in money. If the injury is small, or the mitigating circumstances be slight, nominal damages only are given. There is no fixed rule by which the jury must be governed in estimating damages for personal injuries, permanent injuries, nor pain and suffering. The amount of such general damages is for the enlightened conscience of an impartial jury. You must determine, of course, first, whether there has been any permanent injuries or general damages. You must determine whether or not there has been any pain and suffering; and, in order to determine that, you must look to the evidence and see what was done, and you must draw your conclusions from the facts established by the evidence. If you find that there has been no such damage, then the rules of law that I have given you would apply; and, if there has been none such, there can be no recovery. In other words, if no injury has been done, no permanent injury has occurred, then no damage could be awarded to the plaintiff."

(3) Because the court charged as follows: "Gentlemen, if both parties were equally negligent, then the plaintiff cannot recover, and you would have to find a verdict for the defendant in the case. In other words, where both parties are negligent, in order for the plaintiff to recover...