Seaboard Coast Line R. Co. v. Clark

• Court: Georgia Court of Appeals
• Writing for the Court: BELL
• Citation: Seaboard Coast Line R. Co. v. Clark, 176 S.E.2d 596, 122 Ga.App. 237 (Ga. App. 1970)
• Decision Date: 17 June 1970
• Docket Number: No. 1,No. 44912,44912,1
• Parties: SEABOARD COAST LINE RAILROAD COMPANY et al. v. Elizabeth CLARK

Page 596

176 S.E.2d 596

122 Ga.App. 237

SEABOARD COAST LINE RAILROAD COMPANY et al. v. Elizabeth CLARK.

No. 44912.

Court of Appeals of Georgia, Division No. 1.

June 17, 1970.

Rehearing Denied July 24, 1970.

Certiorari Denied Sept. 15, 1970.

Syllabus by the Court

1. In an action for wrongful death involving the operation of a train, it was error to admit testimony that the engineer was involved in prior railroad accidents involving death.

2. It was error to charge that parts of the answer of one of the defendants to plaintiff's petition would be regarded as admissions.

3. Photographs of the railroad tracks and right of way were admissible in evidence.

7. It was error to charge the jury that wilful and wanton misconduct is the equivalent of gross negligence.

4-6, 8, 10-12. The instructions to the jury discussed in these divisions of the opinion were not erroneous.

9. Review of a charge enumerated as error is limited strictly to the grounds of objection stated at trial.

13. As the evidence did not demand a verdict for defendants, the trial court did not err in denying defendants' motion for judgment notwithstanding the mistrial.

This is an action for wrongful death brought by the decedent's widow. At the close of the evidence, defendants moved for a directed verdict which was denied. The case was submitted to the jury who could not agree on a verdict and a mistrial was declared. Defendants moed for judgment notwithstanding the mistrial, which was denied and certified by the trial judge for immediate review. Error is enumerated on the denial of the motions for a directed verdict and judgment notwithstanding the mistrial, the admissibility of some of the evidence, and part of the charge to the jury.

The evidence revealed that the train was proceeding through Thomson, Ga., about 9:30 p.m., at the time it struck the deceased. The engine headlight was operating, the bell ringing at all times while passing through this city, and horn signals were given at crossings. The train's headlight shone with a brilliance 'greater than an automobile's.' The engineer as he came around a curve observed what he said he believed to be a piece of paper or plasterboard about 150 to 175 feet ahead of him near the trucks. He did not reduce his speed. At a distance of about 30 feet, he discovered that the object was a man, who was lying on the ground with his head about 18 inches from the track and his body extended outward from the track. The engineer applied the emergency brakes and the train came to a stop after traveling more than 800 feet. At the time the brakes were applied, according to the engineer, the train was traveling between 27 and 28 miles an hour. A mechanical speed recorder on the engine indicated a speed of 27 1/2 miles per hour when the brakes were applied. The fireman's step on the right front struck the individual, identified later as plaintiff's husband, causing fatal injuries. The deceased was wearing a white T shirt. The weather was clear. According to the defendants' answer to an interrogatory, the engineer's view of the tracks was unobstructed for a distance of about 218 yards from the front of the engine to the point where the deceased lay. There is a pathway adjacent to the tracks where the fatality occurred, used by many people for a number of years prior to this accident, both day and night. Defendants admitted knowledge of this use. Signs prohibiting trespassing had in the past been posted but the signs had been taken down by someone one unknown to defendants. Defendants had not given anyone permission to walk along the tracks. The deceased had been observed drinking intoxicating liquor prior to the accident but the evidence was in conflict as to whether he was drunk. A physician testified that he treated the deceased for phlebitis about two years previous to the accident; that a nose bleed causes dizziness and unsteadiness of gait. Phlebitis could affect the deceased's ability to walk. Plaintiff testified that her husband suffered from nose bleeding.

Robert E. Knox, Thomson, Fulcher, Fulcher, Hagler, Harper & Reed, W. M. Fulcher, Augusta, for appellants.

Walton Hardin, Washington, for appellee.

BELL, Chief Judge.

As a new trial will be required in this case, it is advisable for the court to consider certain of the defendants' enumerations of error raising questions which otherwise would most likely reoccur during the next trial.

1. Defendants object to the overruling of their motion to strike an amendment to plaintiff's petition alleging in substance that defendants had knowledge that the engineer in this cause was a careless and negligent person in that he was the operator of trains in which he negligently and carelessly caused the death of two individuals in separate accidents which occurred prior to this incident and the admission over objection of the testimony from the engineer concerning the two prior accidents. In this they are correct as similar acts or omissions on other and different occasions are not generally admissible to prove like acts or omissions at a different time and place. The current issue is negligence or the lack of it at the time and place of the accident which occasioned this legal inquiry. Butler v. Central of Ga. Ry. Co., 41 Ga.App. 115(5) 151 S.E.2d 834; Murray Biscuit Co. v. Hutto, 115 Ga.App. 870, 156 S.E.2d 132. The amended pleadings should have been stricken and the evidence excluded.

2. One of the defendants, the Georgia Railroad & Banking Corporation, answered several of the paragraphs of the plaintiff's petition by pleading that it could neither admit nor deny plaintiff's allegations for want of sufficient information. This defendant later amended its original answer and either admitted or denied some of these paragraphs. The trial court admitted for jury consideration, over objection of defendant, the parts of defendant's original answer in which it pleaded an inability to admit or deny for want of sufficient information and charged the jury that these parts of the defendant's answer would be regarded as admissions. It is apparent from the record that the court's charge was based upon Code § 81-308. This provision of law was specifically repealed by the Civil Practice Act. Ga.L.1966, pp. 609, 687, 688; Ga.L.1967, pp. 226, 246; Code Ann. § 81A-201(m). Although this suit was filed in January 1967, a trial was had in March, 1969, after the effective date of the Civil Practice Act. The trial court was expressly bound to follow the Civil Practice Act at the trial in March, 1969 Ga.L.1968, pp. 1104, 1109; Code Ann. § 81A-186(a). The Civil Practice Act has no provision similar to those of the repealed Code § 81-308. The trial court erred in this instruction to the jury.

3. The trial court did not err in admitting in evidence photographs of the railroad tracks and right of way taken several years prior to and about one year after the accident, where there was testimony that the pictures accurately portrayed the scene at the time the deceased was killed. Code § 38-201; Draffin v. Massey, 93 Ga.App. 329, 92 S.E.2d 38.

4. The jury was instructed that it would be presumed that the deceased did not assume his position near the railroad tracks voluntarily. This instruction apparently is taken from our decision in Ellis v. Southern Railway Co., 89 Ga.App. 407, 414, 79 S.E.2d 541, where it was stated that suicide is never presumed. In substance, this instruction states this principle and it was not erroneous.

5. The judge charged the jury that the duty of a person to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence of the other party is known or by the exercise of ordinary care and diligence should have been apparent. Defendants at trial excepted on the ground that the instruction was not a correct statement of the law, as the duty to exercise ordinary care for one's own safety exists at all times. The instruction as given states the avoidance of consequences doctrine based upon Code §§ 94-703 and 105-603 and decisions of the Supreme Court and this court. Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708, 39 S.E. 306; Georgia Railroad & Banking Co. v. Farmer, 45 Ga.App. 130, 145, 164 S.E. 71. The defendants cite the case of Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6 as authority that this instruction is contrary to decisions of the Supreme Court. As we view the Southland decision (which is factually distinguishable), it expressly recognized this instruction as a correct principle of law.

6. Exception was taken to the instruction to the jury on the last clear chance doctrine on the ground that this theory has no application here deceased by the use of ordinary care could have avoided the consequences of any negligence of the railroad. As applied in Georgia, it is only where the defendant knows of the other's situation of peril and realizes or has reason to realize the other's helpless condition that defendant is charged with a duty of using reasonable care and competence in his then existing ability to avoid harming the other person. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6, supra; Palmer v. Stevens, 115 Ga.App. 398, 154 S.E.2d 803. As there is some evidence that the engineer knew of the presence of the deceased lying helpless adjacent to the tracks prior to striking him, and as there is some evidence that deceased's position of peril was not brought about by voluntary drunkenness, a jury would be authorized to find the defendant negligent on the last clear chance theory. Again defendants rely upon ...