Southern Ry. Co v. Wessinger, (No. 15018.)

CourtUnited States Court of Appeals (Georgia)
Citation32 Ga.App. 551,124 S.E. 100
Docket Number(No. 15018.)
Decision Date24 April 1924

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.

The witness had testified to an experience of 9 years as a railroad engineer. This was sufficient to allow his evidence to go to the jury as that of an expert upon the subject or question under investigation. Compare Macon Railway & Light Co. v. Mason, 123 Ga. 773 (5), 51 S. E. 569. Nor was the fact that the witness was not acquainted with the operation of the particular gear with which the engine in question was equipped a sufficient cause for excluding his evidence altogether. It had some relevancy to the subject-matter of the inquiry, and it was forthe jury to determine its value as applied thereto. "The testimony of an expert,.as to his opinion as such, is admissible upon any.matter, if the opinion given relates to scientific or technical knowledge. The weight of such testimony, and whether its application to the proved facts is illustrative of the particular transaction under investigation, is a question for the jury." McClendon v. State, 7 Ga. App. 784 (1), 68 S. E. 331. Compare, in this connection, the ruling of this court in Augusta Ry. Co. v. Arthur, 3 Ga. App. 513 (2), 60 S. E. 213, that—

"The admission of testimony as to experiments must largely rest in the discretion of the trial judge; and the exercise of this discretion will not be controlled, unless manifestly abused. The weight to be attached to such testimony is for the jury, and varies according to the circumstances of similarity which the jury may find to exist between the experiment made or observation taken and the actual occurrence whoBe facts and features are under investigation."

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:

"That law further says that in all actions hereinafter brought against any such common carrier by a railroad, under and by virtue of any of the provisions of this act, to recover damages for personal injuries to an employee, the fact that the employee may have been guilty of contributory negligence shall not bar recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. Now, if this plaintiff shows that he was injured by the alleged negligence of the defendant, or one of the allegations of negligence, then if it shall appear to you that the plaintiff was negligent, but that his negligence was not the sole cause of the injury, then he may recover; if the evidence convinces you that he was negligent to some extent, but not amounting to bringing about the sole cause of the injury, then he would still be entitled to recover, if he was guilty of some negligence, but you ought to diminish the amount you allow him, in proportion as his negligence was made to appear."

It is urged that this charge is error, for the reason that the court—

"failed to instruct the jury with respect to the question of damages, that, in diminishing the amount of the recovery in proportion to the amount of negligence attributable to such em ployee, this was with relation to the total negligence of both the employer and the employee."

This does not State the assignment in full, but comprehends its substance. This ground of the motion might be disposed of under the rule that it is not a good assignment of error in a portion of the judge's charge which states a correct principle of law applicable to the case, that some other correct and appropriate instruction was not given (Smith v. Du Hart, 152 Ga. 551 [3], 110 S. E. 301); but, regardless of this rule of practice, we entertain the opinion that the court's charge as a whole, in the absence of appropriate request, sufficiently informed the jury that, if the defendant was liable, but if the plaintiff was contributorily negligent, he could not recover—

"full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier boars to the entire negligence attributable to both."

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 case—but the plaintiff was negligent to the extent of one-third, and the result of this accident or injury was brought about by the negligence of the plaintiff to that extent, then you would deduct one-third, or $1,000, of the amount from the verdict. There would be other questions that would enter into the amount of the plaintiff's recovery, if he is entitled to recover, which the court will explain to you."

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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