Sylvania Central Ry. Co. v. Gay

• Decision Date: 19 October 1950
• Docket Number: No. 32997,Nos. 1,2,32997,s. 1
• Citation: 61 S.E.2d 587,82 Ga.App. 486
• Parties: SYLVANIA CENTRAL RY. CO. v. GAY
• Court: Georgia Court of Appeals

Page 587

61 S.E.2d 587

82 Ga.App. 486

SYLVANIA CENTRAL RY. CO. v. GAY.

No. 32997.

Court of Appeals of Georgia, Division Nos. 1, 2.

Oct. 19, 1950.

Syllabus by the Court.

1. The allegations of the amendment to the petition as to grounds of negligence charged to the defendant were sufficient to present a question of fact to the jury and the judge of the City Court of Sylvania did not err in overruling the special demurrer thereto.

2. In view of all the evidence in the case relating thereto, the court did not err in admitting over the objection of the defendant the photograph of the scene of the homicide made almost two years after the occurrence.

3. The corrective charge of the court withdrawing a portion of the charge previously given was sufficient to overcome in the minds of the jurors any error in the giving of the erroneous portion of the charge, and the court did not err in overruling the ground of the motion for a new trial complaining of such erroneous portion.

4. The court did not err in failing to charge the jury the form of the verdict.

5. The charge complained of in ground 4 of the amendment to the motion for a new trial and the failure to charge in immediate connection therewith that the deceased must have been in the exercise of ordinary care and diligence for his own safety was not error for any of the reasons assigned.

6. The evidence supported the verdict.

Price & Spivey, Swainsboro, for plaintiff in error.

W. C. Hawkins, Sylvania, Milton A. Carlton, Millen, for defendant in error.

WORRILL, Judge.

Mrs. Wudie Gay sued the Sylvania Central Railway Company for damages because of the death of her husband alleged to have resulted from the collision of an automobile driven by the deceased with a train of the defendant at a grade crossing in the town of Sylvania, Georgia. The case was previously before this court upon an appeal from a former trial, and for a statement of the pleadings and the facts therein see Gay v. Sylvania Central Rwy. Co., 79 Ga.App. 362, 53 S.E.2d 713. The pleadings in this case are the same except that upon the return of the case to the trial court the plaintiff amended her petition by the addition of a paragraph, designated '11a', as follows: 'That said defendant railway company failed to stop the said train before the same reached the said crossing, and failed to send a trainman forward to see if the road was clear of vehicular traffic approaching the said blind and obstructed crossing, and failed to maintain a watchman at this crossing to warn travellers on the highway, including the deceased, John R. Gay, of the approach of a train to said crossing, all of which said omissions to act constitute negligence of [on] the part of said railway company proximately causing the death of the said John R. Gay.' The defendant demurred to this amendment and to each of its parts or specifications of negligence on the ground that there being no allegations in the petition showing that the crossing involved was unsafe and not in good condition, the acts and omissions therein charged to the defendant did not constitute actionable negligence against the defendant, and that the allegations of the amendment did not show the failure of the defendant to perform any duty imposed upon it in approaching the crossing or in the operation of its train upon the crossing. The court overruled this demurrer and the defendant excepted pendente lite.

Upon the trial of the case the jury found for the plaintiff the sum of $10,000, and the defendant made a motion for a new trial on the general grounds which was amended by the addition of four special grounds, and the assignment of error in this court is on the order of the court overruling the motion for new trial, and on the exceptions pendente lite.

1. The court did not err in overruling the special demurrer to the paragraph of the amendment as set forth in the statement of facts. The petition elsewhere had alleged in detail the facts describing the situation of the crossing where the homicide occurred, the obstructions to the view at the crossing, the condition of the crossing, its location within the city limits of the town of Sylvania, and the fact that the crossing was formed by the railroad's juncture with a frequently travelled paved public highway. Under the allegations of the petition it was a question for the jury to determine whether the defendant was guilty of negligence proximately causing the death of the plaintiff's husband in failing to have someone of the train crew precede the engine onto the crossing on foot, or was guilty of such negligence in failing to maintain a watchman at the crossing or some mechanical means of actually advising the persons travelling the highway and traversing the crossing of the approach of the train, or in failing to stop the train before entering onto the crossing was guilty of such negligence. Central of Ga. Rwy. Co. v. Barnett, 35 Ga.App. 528(1a), 134 S.E. 126; Central of Ga. Rwy. Co. v. Leonard, 49 Ga.App. 689(4), 176 S.E. 137; Atlanta & West Point R. Co. v. Twedell, 70 Ga.App. 812, 816, 817, 29 S.E.2d 668.

2. Error is assigned in the first special ground of the motion for new trial on the admission over the defendant's objection of a photograph of the scene of the homicide made the day before the trial. This evidence was objected to by the defendant on the ground that it was made almost two years after the date of the homicide and that it did not appear that the train shown by the photograph was the same train involved in the alleged accident so as to illustrate whether the buildings, lumber piles and other obstructions alleged in plaintiff's petition obstructed the view of the deceased of the approaching train. Besides the photograph in questions the plaintiff introduced in evidence several other photographs of the locale which according to testimony were taken on the day of the homicide. Besides this there was ample testimony showing exactly the arrangement and locations of the various obstructions to the deceased's vision as they existed on the day of the trial. Also the defendant introduced in evidence photographs of the scene which were taken within a short while after the occurrence of the homicide. Furthermore a witness for the defendant testified as to the differences in the situation as illustrated by the photograph in question over what they were on the day of the homicide. We think that this testimony was ample to place this ruling within the principles laid down in Western & Atlantic R. v. Hughes, 37 Ga.App. 771(6), 142 S.E. 185, Georgia Power Co. v. Gillespie, 48 Ga.App. 688(8), 700, 702, 173 S.E. 755, 756, and Coffee County v. Denton, 64 Ga.App. 368, 13 S.E.2d 209.

3. The second special ground of the motion for a new trial complains because the court charged the jury the provisions of the Code, § 94-1108 relating to the presumption of negligence against railroads where the injury inflicted was the result of the running or operation of the defendant's locomotive, train or cars. It may be conceded that this charge was error since the defendant placed in evidence ample testimony relating to the manner it was operating its train at the time of the injury. See Macon, Dublin & Savannah R. Co. v. Stephens, 66 Ga.App. 636, 19 S.E.2d 32. In this ground of the motion for a new trial the plaintiff in error sets forth a further excerpt from the charge given near the end of the charge in the following language: 'It seems that there are certain conditions under which a code section I charged you here is applicable and certain conditions in which it is not applicable; so I'm going to withdraw from your consideration this code section 94-1108; 'all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such company shall be prima facie evidence of the want...