Southern Ry. Co v. Lunsford
| Decision Date | 30 November 1937 |
| Docket Number | No. 26361.,26361. |
| Citation | 57 Ga.App. 53,194 S.E. 602 |
| Parties | SOUTHERN RY. CO. v. LUNSFORD. |
| Court | Georgia Court of Appeals |
Rehearing Denied Dec. 16, 1937.
Syllabus by the Court.
No error of law appearing, and the evidence authorizing the verdict in favor of the plaintiff, the court did not err in denying the defendant's motion for a new trial.
Error from Superior Court, Haralson County; J. R. Hutcheson, Judge.
Suit by Mrs. Olivia Cox Lunsford, as administratrix of the estate of James M. Cox, against the Southern Railway Company. There was a verdict for plaintiff, defendant's motion for a new trial was overruled, and, to review a judgment for plaintiff, defendant brings error.
Affirmed.
E. S. Griffith, of Atlanta, Walter Mat-thews, of Buchanan, and Maddox, Matthews & Owens, of Rome, for plaintiff in error.
Arnold, Gambrell & Arnold, of Atlanta, and Price Edwards, of Buchanan, for defendant in error.
James M. Cox was the engineer in charge of a locomotive which was derailed and overturned near Bremen, Ga. In this accident Cox lost his life, and this suit is filed under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, by Lunsford, his administratrix. The petition in this case originally contained two counts, one based upon the negligence of the company in maintaining its track, roadbed, and equipment, and one because of the company's failure to keep an apparatus, attached to the locomotive and known as "Little Watchman, " in proper functioning condition under the Federal Safety Appliance Law, 45 U. S.C.A. § 1 et seq. This case has been twice tried in the lower court with a verdict for the plaintiff both times. It has been passed on by the Court of Appeals upon a previous appeal from a verdict for the plaintiff in the case of Southern Ry. Co. v. Lunsford, 50 Ga.App. 829, 179 S.E. 571, and, being a suit under the Federal Employers' Liability Act, it was carried to the Supreme Court of the United States by appeal (after the Supreme Court of Georgia had refused a certiorari to the Court of Appeals), and in Southern Ry. Co. v. Lunsford, 297 U.S. 398, 56 S.Ct. 504, 80 L.Ed. 740, the case was reversed for an error in reference to the device on the locomotive called a "Little Watchman." The United States Supreme Court held that there was error in the charge of the trial court in submitting to the jury the question as to the maintenance of the "Little Watchman" in that the evidence showed such appliance to be an experimental device and did not come within the purview of the Federal Safety Appliance Law regarding its being kept jn a proper condition. No other point was dealt with by the United States Supreme Court. Southern Ry. Co. v. Lunsford, 297 U.S. 398, 56 S.Ct. 504, 80 L.Ed. 740. Because of this ruling the entire second count was by amendment deleted from the petition, and the case proceeded to trial a sec ond time on the first count, which was based upon the alleged negligence of the defendant railway company in the maintenance of its track and roadbed and equipment. The evidence adduced on behalf of the plaintiff, in so far as it tended to support the allegations of the first count, was substantially the same on this trial as that introduced in plaintiff's behalf on the first trial. The defendant introduced additional evidence to that on the first trial, tending to negative the charges made by plaintiff of negligence in the maintenance of its track, roadbed, and equipment, and to show that the derailment of this locomotive and the consequent death of plaintiff's intestate, engineer Cox, was caused by the placing of a rock on the rail, at a sharp curve in the track, by a negro boy who just wanted to see if the engine would "bust" it. It was also contended by the plaintiff that, even if the rock had something to do with the derailment of the trucks, rotten ties and insecure rails caused the final derailment of the locomotive, its overturning, and the death of the intestate. The jury returned a verdict in favor of the plaintiff administratrix. The defendant company moved for a new trial on the general grounds, and by amendment added several special grounds, and to the judgment overruling its motion it excepts and brings the case to this court. For fuller and additional facts see the report of the case in 50 Ga.App. 829, 179 S.E. 571, supra.
1. The evidence for the plaintiff on this trial was substantially the same as that adduced by her on the first trial, at which a verdict was returned in her favor against the defendant railway company, in so far as it concerned the first count of her petition, charging negligence upon the part of the defendant company in the maintenance of its railroad track, roadbed, and equipment. The first count (the one upon which the case finally went to trial after the deletion of the second count) was demurred to, and the judgment overruling the demurrer was affirmed by this court. The first verdict was also attacked on the general grounds, and this court held Southern Ry. Co. v. Lunsford, 50 Ga.App. 829, 179 S.E. 571, 576, supra.
The fact that the defendant company in this the second trial introduced additional witnesses testifying to the same facts as witnesses in the previous trial and that it introduced additional evidence which tended to support the evidence which had been introduced on the first trial, this additional evidence in the second trial tending to substantiate the evidence which negatived the charges made by the plaintiff of negligence in the maintenance of the track, roadbed, and equipment, merely makes a jury question, in view of the decision of this court in this same case in 50 Ga.App. 829, 179 S.E. 571. While the evidence in the first and second trials is not identical, if we consider the former decision of this count as persuasive, which we do, the verdict should not be set aside as being without evidence to support it or contrary to the evidence. Thus, we hold that the evidence authorized a verdict in the case sub judice. The jury are the arbiters of questions of fact, and because the losing party introduces more evidence than the prevailing party will not invalidate the verdict if there is some competent evidence to support the finding of the jury. The testimony of a single witness is generally sufficient to establish a fact. Code, § 38-121. While the jury may consider the number of witnesses, the preponderance of evidence is not necessarily with the greater number. Code, § 38-107. "Sometimes, in the minds of jurors, the testimony of one witness is of more weight and credit than of three; nay, than a host of witnesses." McGriff v. McGriff, 154 Ga. 560, 564, 115 S.E. 21, 23. In that case the court held that, although the plaintiff introduced more witnesses than the defendant, the refusal of the judge to grant a new trial under the Code, § 70-206, was not error. While the trial judge may grant a new trial where the verdict is against the weight of the evidence, such is not the province of this court, for that is a matter within the discretion of the trial judge. Code, § 70-206.
2. The first three amended grounds of the motion for a new trial are merely elaborations of the general grounds. Defendant contends that the evidence shows, beyond dispute, that the sole proximate cause of the derailment of the train and resulting death of decedent was the rock placed on the rail by a boy when he heard the train coming; that the undisputed evidence shows that track conditions did not, and could not, have proximately caused or contributed to the derailment of the train; and that the evidence was wholly insufficient to show any defect or insufficiency in its engine, care, appliances, machinery, track, roadbed, or other equipment, or to show any negligence in the maintenance and use thereof. These contentions were determined adversely to the defendant in the preceding division of this opinion. However, we may say that the jury were authorized to find that the ties were not in good condition at the point of the derailment of the trucks, as well as farther down the line where the engine actually turned over. In the case of St. Louis, etc., Ry. Co. v. Thurman, 110 Ark. 188, 161 S.W. 1054, a train was derailed and the company claimed that it was caused by obstruction placed on the track, the porter on the train testifying that rocks, bolts, and other things were found on the track after the wreck. Other witnesses for the defendant company testified that the track was in perfect condition. Two boys were indicted for wrecking the train by placing things on the railroad track. Other witnesses testified that they had heard these boys admit that they had placed the obstructions upon the track which derailed the train. The boys themselves testified as witnesses, denied having anything to do with wrecking the train, and stated that their confessions and statements were caused by threats and inducements held out to them. The plaintiff in that case (the Thurman Case) showed that at the place where the wheels left the track there were rotten ties; that there were indications that the rails had spread at this point; and that the spikes were not driven into the ties down to the rails. In these circumstances a verdict in favor of the plaintiff was held authorized under the evidence. In the instant case we think it was a jury question whether the bad condition of the defendant's track in the immediate proximity of the place of derailment did not...
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