Southern Ry. Co v. Wessinger, (No. 15018.)
Decision Date | 24 April 1924 |
Docket Number | (No. 15018.) |
Citation | 32 Ga.App. 551,124 S.E. 100 |
Parties | SOUTHERN RY. CO. v. WESSINGER. |
Court | Georgia Court of Appeals |
Adhered to on Rehearing, Aug. 11, 1924.
(Syllabus by the Court.)、
Error from Superior Court, Fulton County; W. D. Ellis, Judge.
Action by C. L. Wessinger against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
McDaniel & Neely, of Atlanta, for plaintiff in error.
J. Caleb Clarke and Mark Bolding, both of Atlanta, for defendant in error.
BELL, J. C. L. Wessinger recovered a verdict for $15,000 against the Southern Railway Company in an action under the federal Employers' Liability Act, and the company has excepted to the overruling of its motion for a new trial.
The plaintiff was a fireman on a freight engine referred to in the record as No. 4567, and claims to have been injured in Greenville, S. C, immediately following a run from Atlanta, while he was attempting to "thump" the engine, under orders from the engineer, that the latter might discover the location of certain troubles or defects which were indicated by noises and knocks in the engine en route. It appears in the record that the act of thumping an engine is accomplished by applying the brakes, and then giving the engine steam and putting it in gear. It is shown that an engineer, when standing upon the ground, and observing the engine as it attempts to run while thus held fast by the brakes, may detect, in a measure, its condition as to the existence of certain defects. The plaintiff says that when, in undertaking to thump the engine as directed, he had pulled the reverse lever, it suddenly jerked forward, snatching him with it, and causing him to strike the lever and the boiler head, with the result that he was injured as alleged. He claims that the behavior of the lever was caused by certain worn and defective parts, and that in respect of these the defendant was negligent. The defendant admitted the plaintiff's employment, together with facts which would render the Employers' Liability Act applicable if liability existed. In other respects the answer was a general denial.
1. In ground 1 of the amendment to the motion for a new trial the defendant contends that the court erred in admitting certain testimony of one Skipper, whom the plaintiff had offered as an expert for the purpose of showing hypothetically the cause of the behavior of the lever. The particular engine was equipped with the Walcheart gear. The plaintiff's attorney propounded a question which would have elicited an answer as to the cause of the jerking of the lever on the particular engine with the particular gear. The defendant interposed an objection that the witness was not an expert, and further that he had previously testified that he was not at all acquainted with this type of gear. The question appears to have been improper. The witness, however, did not answer responsively to the question as propounded, but proceeded to testify generally with respect, as he said, to "most any engine." There is no objection that the answer was not responsive. The witness further said: "The reverse levers on the engines are practically the same." We find no error in the court's ruling. "The opinions of experts, on any question of science, skill, trade, or like questions, are always admissible; and such opinions may be given on the facts as proved by other witnesses." Civil Code 1910, § 5876.
This phase of the question would appear to be conclusively settled against the plaintiff in error by the decision of the Supreme Court in Atlanta Ry. & Tower Co. v. Monk, 118 Ga. 449 (4, 5, 6), 456, 45 S. E. 494. This ruling is controlling also of the next ground of the motion, in which it is objected that the court erred in propounding to the same witness a question which called for answer by conclusion. It is noted further that this ground does not show that any objection was made to the question or to the answer thereto at the time.
2. Error is assigned upon the following excerpt from the charge of the court:
See Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114 (5), 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172.
The court elsewhere charged the jury in relation to the same subject as follows:
"To put that in a plain way, suppose that a plaintiff—and these figures are not applicable to this case, but I am simply giving you a rule for your guidance—suppose a plaintiff, under this Employers' Liability Act, was to sue a defendant, and the jury were to determine that he had a right to recover, and they were convinced that the defendant's negligence was not the sole cause of the injury, but that the plaintiff was guilty of some negligence, then you would take a case like this: Say that a plaintiff would be entitled to recover $3,000—just to illustrate, and not applying to this caseâ€
The rule upon this question, under the Employers' Liability Act of this state (Ga. L. 1909, p. 160), contemplates the proportionate diminution of the plaintiff's damages where he is contributorily negligent, by a comparison of the negligence of the plaintiff with the negligence of the defendant. Ga. & Pla. Ry. Co. v. Newton, 140 Ga. 463 (1), 79 S. H. 142; Pickett v. Central of Ga. Ry. Co., 138 Ga. 177, 74 S. E. 1027, Ann. Cas. 1913C, 1380; Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 417, 91 S. E. 517. It is quite clear that the Georgia rule requires a greater diminution of the recovery on account of the plaintiff's concurring negligence, and we could hardly say that the defendant would be injured if the court had not explained fully the federal rule. Indeed, in the Earnest Case (the principal authority which the plaintiff in error has cited in support of this...
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