Sarman v. Seaboard Air Line Ry. Co.

• Decision Date: 18 December 1924
• Docket Number: 15456.
• Parties: SARMAN v. SEABOARD AIR LINE RY. CO.
• Court: Georgia Court of Appeals

125 S.E. 891

33 Ga.App. 315

SARMAN v. SEABOARD AIR LINE RY. CO.

No. 15456.

Court of Appeals of Georgia, Second Division

December 18, 1924

Syllabus by the Court.

This was an action by a mother for the homicide of her minor daughter, whose death was alleged to have been caused at a public crossing by the negligence of the defendant in the operation of its train. The verdict found for the defendant was not demanded, but a finding would have been authorized for either party.

Where a party to a cause on trial permits, without objection, the introduction of inadmissible testimony, the refusal of the court to sustain an objection subsequently urged to the admission of substantially the same evidence as that already admitted, will not work a new trial. The failure to object sooner may be treated as a waiver.

For the reasons stated in the third division of the opinion, it is not cause for a new trial that the court submitted to the jury the questions as to whether the mother was dependent upon the child, and whether the child contributed to her support, as alleged in the declaration.

There was evidence to warrant the instructions whereby the court left to the determination of the jury the question whether the plaintiff should be barred from recovering because of the child's negligence or failure to exercise proper care after the negligence of the defendant was known or should have been anticipated.

(a) The plaintiff cannot complain of a charge when she herself requested that a similar instruction be given to the jury, although the request was refused.

While there was no evidence whatsoever that the child consented to the tort, it is not reversible error that the court charged, in substance, the entire first sentence of section 2781 of the Civil Code, referring to "negligence" and "consent" on the part of the person injured, the part of the charge as to negligence being applicable. The giving of the inapplicable part as to consent was not prejudicial.

The plaintiff was not harmed by the refusal of her request to instruct the jury upon the law in regard to apportionment of damages. Where the jury found for the defendant, the plaintiff ordinarily cannot have been hurt by any error in the court's instructions as to the measure of damages. This general statement may be subject to exceptions, but it is here applicable. Certain other requests were sufficiently covered by the general charge.

Certain charges of the court assigned as error examined, and held not cause for a new trial.

Error from Superior Court, Camden County; J. P. Highsmith, Judge.

Action by Elizabeth Sarman against the Seaboard Air Line Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Bell, J., dissenting in part.

B. A. Atkinson, of Waverly, and Reuben R. Arnold and Lowry Arnold, both of Atlanta, for plaintiff in error.

Conyers & Wilcox, of Brunswick, for defendant in error.

BELL J.

Mrs. Elizabeth Sarman brought suit against Seaboard Air Line Railway Company, a corporation, under the Civil Code, § 4424, for the homicide of her 13 year old daughter, Margaret. The homicide occurred at a public crossing at White Oak, a village in Camden county, when the defendant's train collided with an automobile driven by a Mr. Prickett, in which the decedent was riding. The specifications of negligence were that the defendant failed to observe the requirements of the blow post law; that the train was being run at an excessive speed; and that the defendant's engineer and fireman failed to exercise ordinary care to check the speed or to give any signals of its approach, even after the presence of the automobile stalled on the track was, or should have been, discovered. The defendant filed a plea denying all of the allegations of negligence, and, further, alleged that, when the locomotive reached a point about 100 feet from the crossing, the automobile suddenly appeared upon the track and stopped thereon directly in front of the train; and that, upon discovering the same, the engineer immediately "did everything within his power to bring said train to an immediate stop," but that the distance was then so short that it was impossible for him to stop the train before it collided with the automobile; and that "everything was done that could be done by defendant's employees to avoid" the collision. The trial resulted in a verdict in favor of the defendant, the plaintiff's motion for a new trial was overruled, and she excepted.

The engineer testified that he approached the crossing at a speed of 45 to 50 miles per hour. Some witnesses estimated the speed to be higher and some lower. The evidence was in conflict as to whether the defendant's servants in the operation of the train complied with the blow post law. The railroad track at White Oak runs north and south. There are stores and residences on each side. The depot is on the west side. The public crossing was about 100 feet south of the depot. The train was approaching from the north. The automobile came from the south upon a road parallelling the track on the west side for a distance of about 300 yards, and turned to the right into the crossing. From the position of the automobile as it was traveling north before attempting to make the crossing, the occupants of the car had a view of the track north of the depot for some distance, but the depot and trees obstructed the view to some extent north of the crossing. The decedent with other children was on the rear seat. Their vision, it seems, would have been obstructed to some further extent by the two adults, Mr. Prickett and his wife, who occupied the front seat. The automobile was going at a very slow speed, estimated by some witnesses at four or five miles per hour. As it turned to make the crossing, still more of the track to the north was obscured from the occupants by the depot. It is inferable that none of them ever knew of the approach of the train until the automobile was within a few feet of the track, perhaps not until it was actually upon the track. Mrs. Prickett, the wife of the driver, testified that she looked for the train before they turned in to the crossing, but did not see it. Whether the decedent or the driver looked is unknown. The train was at this time but a short distance away, some of the witnesses saying from 90 to 100 feet, others more. Whether from excitement or other cause, the driver lost control of the automobile and it stopped upon the track. There was evidence that certain persons about the village saw the impending danger and voiced warnings in time for the automobile to be stopped short of the track, but it does not appear whether these warnings were heard by any of the occupants of the automobile. The engineer, on discovering the automobile as it was about to go upon the track, instantly applied the brakes, but it was then too late to avert the collision.

The decedent was nearly 14 years of age, and the evidence tends to show that she was an unusually bright girl. She had finished the eighth grade in school and had had considerable experience in housekeeping, selling goods, and in bookkeeping. Her parents lived about 150 yards from the depot, and their store was near by. The train was a regular train and was running practically on schedule. The circumstances would justify the conclusion that the decedent was acquainted with the schedule.

The collision resulted in the instant death of the decedent and three others of the six who were in the automobile, only one other besides Mrs. Prickett surviving. Mr. Prickett appears not to have been thoroughly experienced in the driving of automobiles, but this was not known to the plaintiff. He was to her knowledge a little deaf in one ear. He had invited Mrs. Sarman to go to ride with them, but she could not go. He then invited the little girl to go, and the mother permitted her to accept the invitation. The father was not at home. There was sufficient' evidence to support the allegations of dependency and contribution.

The above is a fair résumé of the evidence. The motion for a new trial contains the usual general grounds and a number of special grounds.

1. If Mrs. Sarman had made Prickett the custodian of her child any negligence on his part would have been imputable to her, she and not the father, having permitted the child to go with him, and she being the plaintiff. Atlanta, etc., Ry. Co. v. Gravitt, 93 Ga. 369 (3), 20 S.E. 550, 26 L.R.A. 553, 44 Am.St.Rep. 145. But such was not the case; she did not submit the child to his custody but merely allowed it to accept his invitation. Compare Crook v. Foster, 142 Ga. 715 (3), 83 S.E. 670. His negligence was imputable neither to the child nor to the plaintiff mother merely because the child was riding as a guest in his automobile. Southern Railway Co. v. King, 128 Ga. 383 (1), 57 S.E. 687, 11 L.R.A. (N. S.) 829, 119 Am.St.Rep. 390; Mayor, etc., of Savannah v. Waters, 27 Ga.App. 813 (1), 109 S.E. 918, and citations. Still the child, not being so young as to be as a matter of law incapable of negligence (Williams v. Jones, 26 Ga.App. 558 [2], 106 S.E. 616) was under a duty not to be negligent herself, but to exercise proper care for her own safety, although riding in the automobile as the guest of another. Powell v. Berry, 145 Ga. 696 (2), 700, 89 S.E. 753, L.R.A. 1917A, 306; Adamson v. McEwen, 12 Ga.App. 508, 77 S.E. 591. If she failed to do so, and such failure was the proximate cause of her death, the mother was not entitled to recover. Linder v. Brown, 137 Ga. 352 (4), 73 S.E. 734; Elk Cotton Mills v. Grant, 140 Ga. 727 (4), 79 S.E. 836, 48 L.R.A. (N. S.) 656; Civil Code 1910,§ 3474. Whether she exercised the proper care was a question for the jury. It was for them to say whether she should have been on the...