Pollard v. Gorman
| Citation | 182 S.E. 678,52 Ga.App. 127 |
| Decision Date | 16 November 1935 |
| Docket Number | 24614. |
| Parties | POLLARD v. GORMAN et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. In this action, under Code 1933, § 105-1306, by surviving children for the homicide of their mother, occasioned by the impact on a public crossing of a locomotive against the automobile in which she was riding, and which was driven by her husband, the evidence authorized the jury to find that the husband did not die after the mother, but that both perished simultaneously. A finding was therefore authorized that the right of action for her alleged tortious death having never vested in the husband, did not abate by his death prior to the filing of a suit, but accrued to the plaintiffs.
2. Any contributory negligence by the husband driver of the automobile, not being imputable to the mother as a "guest," she having no right of control or direction over the movements of the car, was not imputable to the plaintiff children, since their right of action arose from her death and did not come through the husband.
3. Negative testimony not being without probative value, the jury were authorized to accept, if they saw fit, the testimony of witnesses near the scene of the collision that they did not hear or see any indication of the locomotive whistle, required by statute, being blown for the public crossing, although they heard an emergency whistle immediately preceding the impact, rather than testimony by the employees in charge of the locomotive that the whistle was properly blown, and to find that the crossing whistle was not blown.
4. The burden of showing contributory negligence by the deceased mother being on the defendant, and there being no evidence as to such negligence, it was for the jury to determine the issues of fact made by the testimony: Whether the defendant was guilty of negligence in failing to blow the crossing whistle, or otherwise as charged in the petition; whether the husband driver of the automobile was guilty of negligence in not looking or listening for, seeing, or hearing the approach of the train before entering the crossing; and what and whose negligence, if any, constituted the proximate cause or causes of the homicide. The plaintiffs not being precluded from recovery unless negligence by the husband was the sole proximate cause of the injury, without any of the alleged acts of negligence by the defendant proximately contributing thereto, and the verdict of $5,000 for the plaintiffs being authorized, there is no merit in the general grounds of the motion for new trial.
5. No prejudicial error appearing in any of the instructions complained of in the special grounds, for the reasons stated in the opinion, the court did not err in refusing a new trial on such grounds.
Error from Superior Court, Spalding County; W. E. H. Searcy, Jr. Judge.
Suit by Mrs. Paul Gorman and others against H. D. Pollard, receiver. Judgment for plaintiffs, defendant's motion for a new trial was overruled, and defendant brings error.
Affirmed.
In action for death at railroad crossing, charge to treat rule as to diminishing damages as controlled by charge on general subject of damages held not erroneous as depriving railroad of benefit of comparative negligence rule, where railroad failed to prove that decedent was guilty of any contributory negligence defeating or diminishing recovery.
Statement of facts by Jenkins, P.J.:
The surviving children sued the railroad company for the full value of the life of their mother, who, while riding as a guest in an automobile driven by her husband, was killed on a public crossing by the impact of a locomotive drawing four passenger cars. The automobile was traveling northward up the paved highway, and the train was moving at 50 or 60 miles an hour in the same direction. The car entered an unpaved road at an approximate right angle to the highway, about 30 feet from the railroad track, and started to cross the track at a speed of about 25 miles an hour. The mother was seated on the front seat at the right of the car, the direction from which the train was coming. The fireman sat on the side of the locomotive where the highway and automobile were, and the engineer sat on the other side. The fireman first saw the automobile when it was about 65 feet from the crossing just before it started to turn, and the train was about 50 to 65 feet from the crossing when the car started to turn. The fireman then made an exclamation, warning the engineer, who without previous knowledge of the danger, then blew an emergency blast of the whistle, and threw on the emergency brakes. The train was stopped at a distance of from 500 yards to a half mile from the crossing; and the automobile was then found on the "cowcatcher" of the locomotive with the occupants of the automobile all dead inside of the car. There was no evidence indicating whether the father or the mother had died first, unless we consider the testimony that the locomotive struck the car at about its center on the side where the mother was, that her body was found against that of her husband, that her weight was about 200 pounds, and that she was in excellent health, attending regularly to heavy household work.
The wind was blowing from the direction opposite to that from which the train and the automobile were moving. It was not shown whether the glasses of the closed automobile were up or down. It was cloudy and rather cold. Behind the train, there were trees, but there was nothing else which might have affected the vision of the occupants of the automobile or prevented them from seeing the train, if they had looked, except that at one position, close to the crossroad approaching the track, there was a telephone pole, which would have obstructed the vision of a person looking from an automobile in that location for an approaching train. There was no evidence as to what the mother did or did not do in warning or failing to warn the driver of the car, or to indicate that she herself was guilty of contributory negligence. The fireman and the engineer both testified that the regular public crossing signal was properly blown before reaching the crossing in question. Two other witnesses, who lived respectively about 200 yards and about a quarter of a mile from the crossing, testified that, although they heard a distress whistle blown immediately preceding the crash, they did not hear any crossing whistle blown, or see any indication of steam from the whistle. The jury returned a verdict of $5,000. The defendant assigns error on the refusal of a new trial on the general grounds and on special grounds, attacking portions of the charge, as stated in the opinion.
Beck, Goodrich & Beck, of Griffin, for plaintiff in error.
Arnold, Gambrell & Arnold, of Atlanta, and Chester A. Byars, of Griffin, for defendants in error.
1. Under the Code of 1933, § 105-1306, if a mother dies leaving children and a husband, who lives even for a short time after her tortious death, and no action for the homicide has been commenced, the whole cause of action, being vested jointly in the husband and children, abates. But if the mother dies leaving only children and no husband surviving her, such children, whether minors or adults, have a right of action for her homicide. Hood v. So. Ry. Co., 169 Ga. 158, 149 S.E. 898; Atlanta & West Point R. Co. v. Venable, 65 Ga. 55; Thompson v. Ga. Ry. & Power Co., 163 Ga. 598, 136 S.E. 895; Elberton v. Thornton, 138 Ga. 776, 76 S.E. 62, Ann.Cas. 1913E, 994.
Where two persons perish in a common disaster under circumstances which render it impossible to determine the order of their deaths, as to questions of inheritance, it was the rule at common law and is the general rule in most jurisdictions, as expressed in the Code § 113-906, that, although there is no presumption of law as to the survivorship of either person and the survival of either must be proved by the party asserting it, the law will treat the titles and rights of the persons as remaining where they were vested at the time of the deaths, irrespective of survivorship. In matters of inheritance, the practical result is the same as if the law presumed that both persons perished at the same moment, although no presumption of law exists in such cases. See, as to the burden of proof in questions of survivorship, Roberts v. Hardin, 179 Ga. 114, 175 S.E. 362; and as to the common law and general rules, article on "Presumption as to Order of Death in a Common Calamity," by D. H. Redfearn, Fla. Law Journal, Vol. IX, No. 5, May 1935, pp. 419, 422. See, also, Hitchcock v. Beardsley, 1 West. Ch. 445, 25 Eng. Reprint 1025 (decided 1738); Coye v. Leach, 8 Metc. (Mass.) 371, 41 Am.Dec. 518; Young Women's Christian Home v. French, 187 U.S. 401, 23 S.Ct. 184, 47 L.Ed. 233; Newell v. Nichols, 75 N.Y. 78, 79, 31 Am.Rep. 424; Middeke v. Balder, 198 Ill. 590, 597, 64 N.E. 1002, 59 L.R.A. 653, 92 Am.St.Rep. 284; Supreme Council v. Kacer, 96 Mo.App. 93, 101, 69 S.W. 671; Cowman v. Rogers, 73 Md. 403, 21 A. 64, 10 L.R.A. 550; 17 C.J. 1179, 1180. These general rules, however, yield where there is actual proof, even though slight and circumstantial. In the instant suit against a railroad company by children for the alleged tortious homicide of their mother, under the Code, § 105-1306, and under the averments of the petition that she "left surviving her no husband and no children except the plaintiffs," the burden was on the plaintiffs to prove that the mother left no husband surviving her. But where the deaths of the husband and wife occurred in a common catastrophe, it was sufficient to prove by direct or circumstantial evidence that they died at the same time, without going further to prove that the husband...
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