Southern Ry. Co. v. Parham

• Citation: 73 S.E. 763,10 Ga.App. 531
• Decision Date: 12 February 1912
• Docket Number: 3,704.
• Parties: SOUTHERN RY. CO. et al. v. PARHAM.
• Court: Georgia Court of Appeals

73 S.E. 763

10 Ga.App. 531

SOUTHERN RY. CO. et al. v. PARHAM.

No. 3,704.

Court of Appeals of Georgia

February 12, 1912

Syllabus by the Court.

It is not negligence as a matter of law to leave a moving train unless it clearly appears that the danger in attempting to do so is obvious to a person of common prudence and ordinary intelligence; and whether the attempt to get off, or the alighting from a moving train, is negligence, is generally a question of fact for the jury.

One who goes upon a train for the purpose of assisting a lady and her young children, who intend to become passengers thereon, is in no sense a trespasser, but a licensee; and when his presence thereon and his purpose to get off become known to the employés of the railroad company in charge of the train he is entitled to the duty of ordinary diligence on their part.

A witness who testifies as a medical expert cannot be impeached by showing that in other cases he had made mistakes in his diagnosis. Testimony as to his general reputation, and not as to his success or failure in special cases, is admissible for the purpose of impeachment.

The trial judge should only charge principles of law applicable to the issues made by the pleadings and evidence; but where the judge charged a correct abstract principle of law, not required by the pleadings, but injected into the case by the defendant, on which evidence had been introduced by both sides without objection, and in this connection distinctly instructed the jury that the plaintiff could only recover on the allegations of the petition, the error was immaterial and harmless.

In a suit brought against a railroad company to recover damages for personal injuries caused by the running of its "locomotives or cars," where an employé was joined as codefendant, it was not erroneous for the trial judge to charge the jury on the statutory presumption against the railroad company, and to fail to charge that such statutory presumption did not arise against the individual codefendant in the absence of a specific timely request to do so.

As a general rule no exact method of measuring damages is laid down. In cases of permanent injuries the jury may, but are not compelled to, adopt and use the mortality tables as a basis of calculation. The jury should give such compensation by their verdict as would be just and reasonable to both parties, and in arriving at this standard may consider the evidence on the subject in the light of experience and common sense.

Trial courts have not only the right, but it is their duty, to correct any erroneous instructions, and court and counsel should cooperate to prevent injustice through erroneous instructions. It cannot be erroneous for the court, after having charged the jury, to call attention to certain parts of the charge as incorrect and to withdraw them from their consideration.

Testimony as to involuntary exclamations manifesting the existence of pain is admissible. Such exclamations are symptomatic, a part of the res gestæ, and not self-serving declarations, and the evidence relied upon to prove them is not hearsay.

No material error of law appears, and the evidence supports the verdict.

Error from City Court of Elberton; D. W. Meadow, Judge.

Action by G. W. J. Parham against the Southern Railway Company and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Thos J. Brown and A. G. & Julian McCurry, for plaintiffs in error.

Smith, Hastings & Ransom, for defendant in error.

HILL C.J.

Parham sued the Southern Railway Company, joining as codefendant the conductor of the train, and recovered a verdict for $3,750. The defendants' motion for a new trial was overruled, and the case is here for review.

The evidence in behalf of the plaintiff is in substance as follows: On the date alleged in the petition the plaintiff went to the depot of the railway company at Dewyrose, a station in Elbert county, for the purpose of assisting a lady and her two little children, who intended to take passage on the train. It was night, and one of the children was asleep, and the plaintiff took the child in his arms into the car. The train stopped a shorter length of time than usual, and before the plaintiff could place the sleeping child on a seat the train started, although the plaintiff acted with all possible promptness. When the train started, the plaintiff, after placing the child on a seat, hurried to the platform of the coach to get off. A negro porter of the railway company was standing on the steps of the coach from which the plaintiff expected to alight, and was blocking the steps, so that the plaintiff could not get off at that point. The conductor of the train, the individual defendant in the case, cursed the porter for blocking the steps, and called to the plaintiff to cross over to the platform of the next coach and to leave the train from that point. At the depot at Dewyrose there was no wood platform, but the ground between the adjoining tracks was leveled up even with the rails, forming a smooth dirt landing, extending a little on each side of the depot. Beyond this dirt landing in the direction in which the train was going there was a ditch on each side of the railroad, and an embankment across the ditch. The plaintiff attempted to leave the train under the direction of the conductor and at the point where the conductor directed him to get off. It was dark at the time, and the plaintiff could not see that the train had passed the dirt platform, and could not tell the speed that the train had acquired. He relied upon the directions given to him by the conductor, assuming, because of such directions, that it was safe to leave the train at that point. The train had passed the dirt platform above described, and was running faster than the plaintiff had supposed. The train was behind time, was a light train, consisting of only two coaches and an engine, and because of being behind in its schedule acquired considerable speed in a short space of time and could move very much farther than an ordinary railroad train in the time taken by the plaintiff. When the plaintiff attempted to alight he stepped into the ditch above referred to, and because of so stepping into the ditch, and because of the speed of the train, was given a violent wrench, and was thrown against the embankment, and received the injuries stated in the petition, and for which he sought to recover damages.

The evidence of the defendant conflicts sharply with the evidence of the plaintiff, both as to how the accident occurred and as to the extent of the injuries received. The conductor testified that he did not see the plaintiff, did not know that he had gotten on the train for the purpose of assisting passengers, did not give the plaintiff any direction to cross from the platform of one coach to the platform of another, or to get off at that point, and did not curse the negro porter, and, in short, contradicted every statement made by the plaintiff as to the manner in which he had received his injuries, and also denied the existence of any ditch at that place, and said that the train had stopped an unusual length of time that night at Dewyrose, and that the plaintiff had ample time in which to go into the coach and get off without injury by the exercise of ordinary diligence. The conductor's evidence is corroborated by other employés of the defendant.

According to the evidence of the plaintiff, and expert testimony in his behalf, he received very severe and probably permanent injuries. According to the testimony for the defendant, both lay and expert, he received very slight, if any, injuries. This court will not discuss the evidence, except as it may be necessary to do so to illustrate the decisions on special assignments of errors of law. The verdict of the jury settles the conflicts in the evidence, and so far as this court is concerned establishes the truth of the testimony in behalf of the plaintiff, not only as to the manner in which he was injured, but also as to the extent of his injuries, and unless the trial judge committed a material error on some question of law, which was presumptively prejudicial to the defendant, the verdict will not be disturbed.

1. It is insisted by the plaintiff in error that, even conceding the truth of the evidence in behalf of the plaintiff, the verdict is contrary to law, because it shows such negligence on his part as would preclude him from a recovery; that his act in getting off a moving train in the dark was so obviously dangerous that he was not relieved from negligence in attempting to do so, even under the directions given him by the conductor. It is contended that to get off a moving train in the dark, and at a place other than the platform or regular place of getting off is per se such an act of negligence as would in any event prevent a recovery. Many cases are cited from the Supreme Court of this state in the elaborate brief of counsel for plaintiff in error which it is claimed sustain this view of the law, some of them being Jones v. Georgia, Carolina & Northern Ry. Co., 103 Ga. 570, 29 S.E. 927, Barnett v. East Tenn., Va. & Ga Ry. Co., 87 Ga. 766, 13 S.E. 904, W. & A. R. Co. v. Earwood, 104 Ga. 127, 29 S.E. 913, Whatley v. Macon & Northern Ry. Co., 104 Ga. 764, 30 S.E. 1003, Roul v. East Tenn., Va. & Ga. Ry. Co., 85 Ga. 197, 11 S.E. 558, and many others. It would be unprofitable to consider each one of these cases. It is sufficient to say that we have examined each one, and find that none of them sustain the view urged by learned counsel. Nowhere does the Supreme Court lay down the proposition of law that, regardless of the facts, it is such negligence on the part of a passenger or licensee to leave a moving train as would preclude a...