Seaboard Air Line Ry. Co. v. Sarman
| Decision Date | 28 September 1928 |
| Docket Number | 18442. |
| Citation | 144 S.E. 810,38 Ga.App. 637 |
| Parties | SEABOARD AIR LINE RY. CO. v. SARMAN. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
That automobile colliding with train at crossing would have passed over track in safety, if it had not stalled on track, does not establish as fact that stalling was proximate cause of injury, where there was evidence that train was running at negligent speed and that crossing whistle was not blown as required by law; it being question of fact whether injury was caused by negligence of automobile driver or servants of railroad company operating train.
Where evidence showed train was operated at negligent speed on approaching crossing and failed to blow whistle as required by law, it could not be held as matter of law that person familiar with crossing, whose view was obstructed, failed to exercise care in driving automobile in front of approaching train without making effort to detect approach, and was guilty of negligence unmixed with negligence of railroad proximately causing collision.
Decisions of federal courts interpreting laws of states, and not involving federal questions, are not binding as authority of state courts.
Whether person intending to cross railroad track at public crossing is negligent in failing to take precautionary measures, such as stopping, looking, and listening, to detect approach of train, and in assuming agents of railroad company will comply with law and sound crossing alarm, is question of fact.
Where railroad fails to sound alarm on approaching crossing, it is question of fact whether such failure or conduct of injured person, in going on track without taking precautionary measures, is proximate cause of resulting injury.
Where minor child is injured while in custody of another person without knowledge or consent of father, as result of act of person having custody of child, father is not responsible for negligence of person resulting in injury to child when negligence is not imputable to child.
In suit by father against person other than one having custody and control of child, to recover for loss of child's services sustained by father by reason of death of child in collision between train and automobile in which child was riding, and being driven by person having custody of child without father's consent, railroad may rely on negligence of automobile driver as sole proximate cause of death of child and on negligence of child which is attributable to father as proximate cause of injury or as reducing recovery notwithstanding fact that father was not chargeable with negligence of automobile driver.
That mother having custody of minor child permitted child, during father's absence and without father's consent, to ride in automobile driven by another, held not to establish consent by father to child's being intrusted to custody of automobile driver, though father had confidence in ability of driver to carefully operate automobile and would ordinarily have intrusted child to driver's care and left control of children entirely to wife during his absence.
In suit by father to recover for loss of services resulting from death of minor child, in which evidence authorized inference that child was riding in automobile as guest of third person for whose negligence father was not responsible, and that both driver of automobile and agents of railroad were negligent, charge relieving original wrongdoer of liability where subsequent intervening act for which he was not responsible caused injury was proper, and not objectionable on ground that it fixed responsibility for injury without respect to when original wrongdoer might have anticipated intervening act or circumstances surrounding intervening act.
Charge that, if negligence of injured person was proximate cause of injury, there could be no recovery, notwithstanding existence of negligence by person inflicting injury and further separate charge that there could be no recovery if person injured failed to exercise ordinary care to avoid consequences of negligence of other person, held not error as confusing under Civ. Code 1910,§§ 2781, 4426.
Where court, in suit by father to recover for death of minor child charged on right of father to recover where child negligently failed to guard against consequences of defendant's negligence and where child's negligence was equal to or greater than defendant's negligence, charges given were not objectionable as eliminating from consideration by jury any negligence of child as contributing to injury.
Testimony by witness, in suit to recover damages for death by collision of automobile with train at crossing, that witness did not hear whistle blow, and that if it had blown he would have heard it, held positive testimony as to circumstances from which jury could have inferred that whistle did not blow at time and was properly admitted.
Value to parent of services of minor child is not determinable solely from evidence of amount of money child earns or is capable of earning during minority, but may be determined from all evidence, including evidence as to age and precocity of child, earning capacity, services rendered, circumstances of family, and from experience and knowledge of human affairs on part of jury.
Where court charged that value of services of minor child to parent was determinable by all circumstances, including age and earning capacity of child, services rendered, circumstances of family, and experience of jury, charge was not objectionable as failing to present any rule by which amount of damages could be calculated or by which value of services could be reduced to present cash value.
In suit by father to recover for loss of services resulting from death of minor child, fact that there was no evidence of good health or expectancy in life of father at time of trial, or of child at time of death, does not necessarily render evidence insufficient to support amount of verdict.
In absence of evidence to contrary, father suing for loss of services of minor child and child are presumed to have been in good health, and jury could infer from apparent age of father appearing as witness, and from age of child, that each had life expectancy from date of injury of eight years, during which child, had it lived, would have arrived at majority.
Verdict of $5,000 to father, suing to recover for loss of services of child 13 years old killed in railroad collision, held reasonable, especially where verdict was found five years after date of injury and father was entitled to interest during such period on amount representing his damage.
Error from Superior Court, Camden County; J. H. Thomas, Judge.
Action by Frederick Sarman against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Conyers & Gowen, of Brunswick, and W. W. Dykes, of Americus, for plaintiff in error.
Reuben R. & Lowry Arnold, E. C. Hill, and B. P. Gambrell, all of Atlanta, Burwell A. Atkinson, of Waverly, and Bouhan & Atkinson, of Savannah, for defendant in error.
Syllabus OPINION.
1. The fact that an automobile which, while crossing a railroad track at a public crossing, was run into by an approaching train, would, if it had not stalled upon the track, have passed over the track in safety, does not, where there is evidence that the train was running at a rate of speed that was in fact negligent at the time and place and under the circumstances, and that the crossing whistle was not blown as required by law, establish as a fact that the stalling of the automobile, and not some act of negligence on the part of the railroad company, was the proximate cause of the injury. It is a question of fact whether the injury was caused by a negligent act of the driver of the automobile, or such an act on the part of servants of the railroad company in operating the train.
2. Where, upon a trial, there is evidence that a railroad train when approaching a public crossing, was being operated at a rate of speed that was in fact negligent at the time and place and under the circumstances, and that the crossing...
To continue reading
Request your trial