Southern Ry. Co. v. Wessinger, 15018.

• Court: United States Court of Appeals (Georgia)
• Citation: 124 S.E. 100,32 Ga.App. 551
• Docket Number: 15018.
• Parties: SOUTHERN RY. CO. v. WESSINGER.
• Decision Date: 24 April 1924

124 S.E. 100

32 Ga.App. 551

SOUTHERN RY. CO. v. WESSINGER.

No. 15018.

Court of Appeals of Georgia, Second Division

April 24, 1924

Adhered to on Rehearing, August 11, 1924.

Syllabus by the Court.

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. 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 court did not err in allowing a witness of nine years' experience as an engineer to give his opinion as to what would cause described violent and unusual jerking of the "reverse lever," as an appliance upon engines in general although he was not acquainted with the particular kind of gear, affecting the operation of such lever, with which the engine was equipped whereon, by the jerking of such lever the plaintiff suffered the alleged injury for which he sued. See Atlanta Railway & Power Co. v. Monk, 118 Ga 449, 45 S.E. 494.

If it shall appear in an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) that the plaintiff was injured by the concurring negligence of himself and the defendant, he cannot recover full damages, but only a proportional amount, bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both. As against the carrier, the charge of the court was not erroneous because of a failure to state this rule more explicitly.

The excerpt from the charge of the court upon the subject of the credibility of the witnesses, complained of in ground 7 of the motion for new trial, was not cause for setting aside the verdict upon the hypothesis that it was "calculated to mislead the jury into the belief that they would determine the case according to the rule propounded by the court, rather than determine where the preponderance of the evidence lay"; it not being alleged that the rule as stated in the charge was incorrect.

(a) In the absence of a timely written request, it is ordinarily not error for the court to fail to give in charge section 5731 of the Civil Code of 1910, defining preponderance of evidence.

There was some evidence warranting the charge complained of in ground 6 of the motion for a new trial, upon the subject of liability for negligence which, though not the original or sole cause of an injury, yet aggravates it and adds to its extent.

The court charged the jury as follows: "If a man is entitled to have a verdict for a certain amount of money for lost capacity to earn money in the future, why the verdict would give him the money all at once; that is to say, if he was allowed so much a year at the end of any particular period, like 5, 10, 15, or 20 years, or any other period, you would give him all the money at once, and it is worth more to a man to have it all given to him at once than to pay it to him along in the future. To give him $5 to-day would be worth more to him than to cause him to wait five years, and give him so much money each year. So if any amount is allowed him for permanent impairment of his capacity to labor and earn money, that ought to be reduced to its present value, and the rate of reduction to its present value is 7 per cent., that being the regular rate of interest in this state." There is no cause for a new trial merely in the fact that the court omitted the phrase "per annum" immediately following "7 per cent." The excerpt did not intimate an opinion that the plaintiff had suffered permanent impairment of his earning capacity.

Under a denial of the allegations in the plaintiff's declaration, no other defense is admissible than such as disproves the plaintiff's cause of action; all other matters in satisfaction or avoidance must be specially pleaded. Civil Code 1910, § 5630. Whether this rule would be applicable so as to preclude an instruction upon the law in relation to the defense of assumed risk, not specially pleaded, where the defense, if involved, is so only under the evidence of the plaintiff, the assignment in the instant case that "the court erred in failing to charge the jury upon the subject of assumption of risk, the question of assumption of risk inhering in the Employers' Liability Act of Congress (U. S. Comp. St. §§ 8657-8665), and it being incumbent upon the court to charge the jury upon the question of the assumption of risk," is too general and indefinite to present any question for decision. Furthermore, there was no evidence in the case under consideration to warrant an instruction upon the subject.

There was some evidence to authorize a finding in favor of the plaintiff. This court cannot hold, as a matter of law, that the amount awarded him was excessive under the evidence. The court did not err in overruling the motion for a new trial.

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 for the 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 whose facts and features are under investigation."

This phase of the question would...