Seaboard Coast Line R. Co. v. Smith

• Decision Date: 14 March 1974
• Docket Number: 2,Nos. 1,No. 48434,3,48434,s. 1
• Citation: 205 S.E.2d 888,131 Ga.App. 288
• Parties: SEABOARD COAST LINE RAILROAD COMPANY v. Roy L. SMITH, Jr
• Court: Georgia Court of Appeals

Page 888

205 S.E.2d 888

131 Ga.App. 288

SEABOARD COAST LINE RAILROAD COMPANY v. Roy L. SMITH, Jr.

No. 48434.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 14, 1974.

Bennett, Pedrick & Bennett, Larry E. Pedrick, Gibson, McGee & Blount, Lamar Gibson, Waycross, for appellant.

Oliver, Maner & Gray, George P. Donaldson, III, Savannah, Neville & Neville, W. J. Neville, Statesboro, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

This is an appeal by Seaboard Coast Line Railroad from the overruling of a motion for new trial as amended which followed a verdict obtained by Smith in his damage suit for personal injuries sustained in a railroad crossing collision. Plaintiff below was a passenger in his van type automobile in which there were five of his employees, one of whom was driving Smith's car under plaintiff's control. The collision between the engine and the vehicle occurred at approximately 3:30 a.m. at a time when the railroad was engaged in a switching operation at a public highway crossing. There was a heavy misty fog at the location which impaired visibility. Further relevant facts will be stated in the opinion.

1. (a) The first enumeration of error reads: 'The court erred in failing to furnish the parties a panel of twenty-four competent and qualified jurors from which to strike a jury, the court failing to qualify the jurors as to whether any were employees of the railroad company, thereby furnishing a panel of twenty-four jurors, six of whom were employees of the Seaboard Coast Line Railroad Company, and the defendant railroad having stricken three of the employees, and having exhausted all six of its strikes, two employees of the railroad were left on the jury who were incompetent and disqualified.' The record shows: 'Matters relating to the qualifications of the jurors to try this case arose at the beginning of the trial. The question arose as to whether employees of the Railroad Company were qualified jurors. Counsel for plaintiff contended that employees of a party were not disqualified. Counsel for defendant contended that employees of a party had always been held to be disqualified. The court, after discussion of the matter with counsel, ruled that employees of the Railroad Company were not disqualified to sit as jurors and some six or seven employees were placed on the panel of jurors from which the parties were required to strike.'

Following a hearing upon this motion, the trial judge directed the following to be added to the transcript of record: 'When the names of the panel of jurors were called by the Clerk, the Court qualified these jurors with respect to relationship to the plaintiff and to his counsel, also as to whether any of the jurors were officers, directors, stockholders, agents or employees of the Seaboard Coast Line Railroad Company. Whereupon, Mr. Neville, of counsel for the plaintiff, argued to the Court that the courts had held that mere employees of a party, as distinguished from agents, were not disqualified. The court then called counsel to the bench, and Mr. Pedrick, of counsel for the defendant, stated that he contended that employees were disqualified. After some discussion the court qualified the jury as to relationship to the plaintiff and to his counsel; also as to whether any of the jurors were officers, directors, stockholders or agents of the Seaboard Coast Line Railroad Company, and omitted qualifying the jurors as to being employees of the railroad.

'A panel of twenty-four jurors was furnished to counsel for the purpose of striking. Six of this panel were employees of the railroad company, to wit: Virgil M. Hanchey, Billy Jacobs, J. L. Stevens, Tim Bill (Beale) Hickox, Cecil Lynn and Edward Sowell. Plaintiff's counsel used all of his six strikes, one being Edward Sowell, an employee of the railroad. Defendant railroad used all of its six strikes, three of such strikes being employees of the railroad company, to wit: Billy Jacobs, J. L. Stevens and Virgil M. Hanchey. Two employees of the railroad company were left on the jury and set as jurors during the trial and participated in the verdict, to wit: Cecil Lynn and Tim Bill (Beale) Hickox.' (T. 1, 2).

' The object of all legal investigation is the discovery of truth.' Code § 38-101. In attempting to obtain this ideal, the parties to the cases are entitled to have a panel of impartial jurors to select from. Certainly, being a relative or an employee of a party or of counsel having a financial interest in the litigation to be tried, materially detracts from a prospective juror's impartiality. Once such facts become known to the trial judge, he should excuse such prospective jurors and replace them with others not so afflicted. It is not fair to require a juror to sit in judgment on his relative or employer. One can no more judicially assume that a relative or employee sitting as a juror will be partial toward a litigant relative or employer, than we can assume that nations which have been our allies in the past will always be such. Perhaps the one fact that can be assumed is that relatives or employees will be biased one way or the other. 'Let there be no thumb on the scale when the jury weighs the evidence.' Jones v. Cloud, 119 Ga.App. 697, 708, 168 S.E.2d 598, 606. Also see excellent discussion in Division 5 at page 705, 168 S.E.2d 598. To more consistently attain a fair trial by fair and impartial jurors, relatives and employees should be excluded from jury service except where there is a waiver by counsel for both parties.

The wisdom of such rule is substantiated when one considers the plight of any employee during voir dire. 'The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination.' Whitlock v. State, 230 Ga. 700, 706, 198 S.E.2d 865, 868. An individual subpoenaed to jury service in the performance of his public duty should not be called upon to answer affirmatively or negatively with its resultant impact either way upon him personally the question: 'Would your employment prevent you from fulfilment of your sworn duty as a juror to act fairly and impartially and without any bias as between the parties in this case?' In order to insure that each party obtains a panel of impartial jurors it is essential to rule that regardless of any presumption employees should be held incompetent to serve as a juror in a case in which the employer is a party.

b) However, it has long been held that the disqualification of a juror may be waived. See Brindle v. State, 125 Ga.App. 298, 299, 187 S.E.2d 310 and cit. Thus, where disqualification appears by reason of relationship, employment, or any expressed prejudice or bias, the court should remove the prospective juror from the panel where there is an objection by counsel for any party. A review of the record in the case sub judice does not reveal an objection to the trial court's failure to qualify the prospective jurors as to their employment by the defendant railroad. The contention made by defense counsel, as shown in the supplemental record, prior to the trial judge's qualifying the prospective jurors, is insufficient. A contention prior to a ruling can never be the equivalent of an objection to a ruling. We construe the record to show a waiver of the disqualification and consequently no merit in the first enumeration of error.

2. The second enumeration attacks that portion of the charge in which the court said '(I)t is not necessarily such a lack of ordinary care on the automobile driver's part as will defeat a recovery for the operator of a properly equipped automobile to drive it in the night at such a rate of speed that he cannot stop within the limit of his vision ahead. This is true whether the night was foggy or clear. In other words, if you find that the operator of the plaintiff's vehicle was operating the same at such a rate of speed that he could not stop within the limit of his vision ahead, this fact alone would not necessarily constitute a lack of ordinary care, but it would be your responsibility to take into consideration from the evidence all the facts and circumstances as you find them to be.' (T. 259-260). There is no error in this instruction as it placed upon the jury the duty to make the final determination of whether or not the plaintiff was in the exercise of ordinary care under all of the evidence. Bach v. Bragg Bros, etc., 53 Ga.App. 574(3), 186 S.E. 711; Rogers v. Johnson, 94 Ga.App. 666, 96 S.E.2d 285; Central of Ga. Ry. v. Brower, 106 Ga.App. 340, 347 127 S.E.2d 33.

3. Enumeration of error number 3 attacks this portion of the charge: 'I charge you that there are circumstances where due care for the safety of others would require a railroad obstructing a crossing to place a guard, light, or some other warning at a proper point to give notice for the time that the crossing is obstructed. An illustration of such circumstances is a misty and foggy morning. Except in clear and indisputable cases, whether particular circumstances require such action on the part of the railroad is a question exclusively for the jury to determine.' (Emphasis supplied.) (T. 260). This instruction was excepted to on the ground that it amounted to 'an expression of opinion as to what the railroad would be required to do on a misty and foggy morning which was emphasizing the facts in this case' and that it was 'further error because it was argumentative in view of the evidence of mist and fog.'

This instruction was quoted from the cases of Savannah & A.R. Co. v. Newsome, 90 Ga.App. 390, 394(1a) (83 S.E.2d 80); A.C.L. Railroad v. Studdard, 99 Ga.App. 609, 612, 109 S.E.2d 523 and Jones v. Grantham, 102 Ga.App. 436, 438, 116 S.E.2d 668. Language used in one case by an appellate court may not be appropriate for another case when used in totidem verbis. Atlanta & West Point R.R. Co. v. Hudson, 123 Ga....