Seaboard Air Line Ry. Co. v. Young
| Decision Date | 10 April 1929 |
| Docket Number | 19189. |
| Citation | 148 S.E. 757,40 Ga.App. 4 |
| Parties | SEABOARD AIR LINE RY. CO. v. YOUNG. |
| Court | Georgia Court of Appeals |
Rehearing Denied June 17, 1929.
Syllabus by Editorial Staff.
Petition for death of decedent riding in automobile which fell through guard rail on bridge over railroad tracks, alleging automobile made sharp curve on bridge while approaching at speed not exceeding eight miles per hour with all proper care and diligence, and that guard rail was negligently maintained causing automobile to fall on tracks, stated cause of action since railroad is under duty to exercise due care in maintenance of bridge over tracks along public highway in condition safe for travelers passing over bridge in exercise of due care.
In determining whether railroad has exercised due care in maintenance of bridge over tracks in condition safe for travelers, consideration should be given to physical surroundings and particular condition of roadway approaching bridge under Civ. Code 1910, § 2673.
If physical surroundings are such that it could reasonably be supposed that automobile in making difficult entrance on bridge over railroad tracks while being driven in proper manner would came in contact with guard rail, jury would be authorized to say that physical surroundings should be taken into consideration in determining character and strength of guard rail required to be provided, and allegation that guard rail at time of accident was weak, rotten, and insecure was such an averment as might be held to charge negligence on part of railroad.
Petition for death of decedent riding in automobile, which struck guard rail on bridge over railroad tracks and fell on tracks below, held amendable by alleging that floor of bridge was higher than roadway and that railroad negligently permitted loose sand to accumulate on abutment of bridge causing automobile to turn and strike guard rail.
Petition for death of decedent riding in automobile, which struck guard rail on bridge over railroad tracks and fell on tracks below, held amendable by alleging name of driver of automobile and more particularly describing construction of bridge and nature and character of roadway and surrounding territory.
In suit by mother for alleged wrongful death of minor daughter testimony by plaintiff as to number of persons composing family or statement of court in ruling on testimony that plaintiff's right to sue was not affected by fact that there were other members of family, but that plaintiff had "right to sue for her anyway," held not prejudicial error.
In action involving issue as to qualification and experience of driver of automobile at time of death of decedent riding in automobile, person who was passenger in automobile, and who observed actions of driver over long trip, was properly allowed to testify to manner of driving with respect to driver's care and competency under Civ. Code 1910, § 5874.
In action for death of passenger in automobile which fell off bridge crossing railroad tracks, witness who sat in car next to driver was properly allowed to state that he did nothing to cause car to hit bannister rail on bridge.
In action for death of passenger in automobile which fell off the bridge crossing railroad tracks, testimony of passenger in automobile that he did not notice any loose sand or dirt on bridge could not have been harmful to defendant railroad where petition alleged that loose sand negligently placed by railroad caused automobile to turn and strike rail, and admission of such testimony was not reversible error.
In action for death of passenger in automobile which fell off bridge crossing railroad tracks when striking guard rail, testimony by witness riding in automobile that bridge was not as wide as road, but was little narrower, was not reversible error, where other testimony showed without dispute exact width of roadway and bridge.
Where witness testified that he had ridden in automobiles for many years, but had never driven one, and had observed and knew effect of soft sand and dirt on automobile wheel, witness was properly permitted to testify that in his opinion striking loose sand and dirt on bridge would have tendency to change course of automobile.
In ruling on admissibility of testimony concerning witness' opinion that loose sand and dirt on bridge would have tendency to change course of automobile, court properly stated that probative value of testimony was question for jury.
In action for death of pessenger of automobile which fell off bridge crossing railroad tracks after striking defective guard rail, testimony of father of deceased, as to condition of piece of timber picked up by him under bridge short time after accident and forming part of guard rail, was properly admitted, in view of testimony that witness had made search for timber and was unable to find it.
In action for death of passenger in automobile which fell off bridge crossing railroad tracks after striking guard rail, testimony of father of deceased that in his opinion he could have pushed guard rail off bridge was admissible, in view of previous testimony of witness as to condition of rail and manner in which it was braced and fastened to bridge.
In action for death of passenger in automobile falling off bridge crossing railroad tracks after striking guard rail, testimony by driver of automobile, offered as witness for defendant, on cross-examination, that automobile struck guard rail with slight force and that guard rail gave way and car slowly toppled over and that in her opinion guard rail was not strong, held properly admitted.
In action for death of passenger in automobile which fell off bridge after striking guard rail, where defendant, under duty to maintain bridge, sought to establish that short time prior to accident bridge had been repaired and rebuilt, it was competent for plaintiff to offer proof in rebuttal that such repairs were not made until after accident.
In action against railroad for death of passenger riding in automobile which fell off bridge crossing railroad tracks, contract between county and railroad under which bridge was constructed was not admissible in evidence, since railroad's duty to exercise care in construction and maintenance of bridge arose by operation of law and was not affected by contract.
Where father, mother, and minor children reside together and are mutually dependent on labor of family for support, minor child over 15 years of age, whose labor or proceeds thereof comes into common stock, is to be considered as contributing substantially to support of mother under Civ. Code 1910, § 4424, as regards recovery for his death.
In suit by mother for alleged wrongful death of minor daughter, instruction that contribution by child to general support of family would entitle mother to recover full value of child's life, if jury should find mother entitled to recover, was not harmful error, since fact of partial dependency by mother on contributions of child was undisputed.
In action against railroad for death of passenger in automobile which fell off bridge crossing railroad tracks after striking guard rail, charge that, if jury believed that proximate cause of decedent's death was negligent erection of bridge, defendant would be liable, held not objectionable as expression of opinion by court that proof actually showed guard rails to be weak or bridge negligently constructed.
In action for death of passenger of automobile, charge that negligence of driver of automobile is not imputed to guest, but that guest must exercise due care in occupying automobile and in efforts to avoid injury or death, did not deprive defendant of benefit of contention that driver of automobile was inexperienced and was known by decedent to be inexperienced.
If more ample instructions on contention of defendant were desired, instructions should have been requested by defendant.
Charge, in action for death of passenger riding in automobile, using word ""plaintiff" instead of word "decedent," was mere slip of tongue and could not have misled or confused jury.
In action for death of passenger riding in automobile, error, if any, in charge whereby negligence of driver might be taken to reduce damages, militated against rights of plaintiff and was not error as to defendant.
In action for death of passenger riding in automobile, action of court in submitting to jury mortality tables and instructing jury with reference to their use by using example of person earning $40 per month, when proof showed decedent was earning $45 per month, held not error as not calculated to influence jury in amount of verdict.
Error from Superior Court, Gwinnett County; W. W. Stark, Judge.
Action by K. B. Young against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
John B. Gamble, of Athens, and N. L. Hutchins, of Lawrenceville, for plaintiff in error.
John I. Kelley, and O. A. Nix, both of Lawrenceville, for defendant in error.
Syllabus OPINION.
1. The petition was not subject to general demurrer in that it set forth no cause of action, or because it affirmatively showed that the driver of the automobile in which the decedent was killed was guilty of negligence proximately causing the homicide, where it was alleged that the decedent, while traveling in an automobile along a public road which made a sharp curve at and upon a bridge over the railroad track of the defendant, approached the bridge with all proper care and diligence, at a speed not exceeding eight miles per hour, and in "easing" upon the bridge, and in making the very sharp turn thereat, touched the guard rail thereof with a very slight force, but that, on account of the weak,...
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