Western & Atlantic R. R. v. Hart
| Decision Date | 24 May 1957 |
| Docket Number | No. 36602,No. 2,36602,2 |
| Parties | WESTERN & ATLANTIC RAILROAD v. W. D. HART |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The grant or refusal of motions for mistrial is largely within the discretion of the trial court, and this discretion will not be interfered with unless manifestly abused; and, where the trial court immediately upon the happening of an irregularity gives cautionary instructions to the jury, this court will not disturb the trial court's judgment refusing a motion for mistrial.
2. Evidence which is within the limits of the pleadings is admissible upon the question of pain and suffering although the specific ailment has not been especially set forth in the pleadings.
3. The extent and scope of cross-examination is not unlimited, and it is within the discretion of the trial court to enforce such restrictions as are necessary to prevent repetition of questions as to matters already fully developed on cross-examination.
4. The value of the opinion of a 12-year-old witness as to the speed of a train, which is based upon facts stated, and the sufficiency or insufficiency of these facts to authorize the opinion given, are matters to be determined by the jury.
5. The trial court's charge to the jury is not subject to any of the criticisms lodged against it in this ground.
6. In a suit for damages on account of personal injuries resulting from a tort, where the petition alleges that the ability of the plaintiff to earn money has been decreased, it is error for the trial court to charge the jury on this element of damages, unless there is some evidence on which the jury can base with reasonable certainty a finding as to the amount of such damages.
7. The general grounds are not now considered.
W. D. Hart brought an action for damages against the Western & Atlantic Railroad, a corporation of the State of Georgia, pursuant to an act of the General Assembly of Georgia, approved on November 30, 1915 (Ga.L.Ex.Sess.1915, pp. 119, 127, § 11). It is alleged that by virtue of the Act of 1915, the Nashville, Chattanooga & St. Louis Railroad leased the Western & Atlantic Railroad from the State of Georgia, and subsequently subleased the use of its tracks through Cobb County to the Louisville and Nashville Railroad Company, and this latter company was operating under such sublease at all times material to this action. The remaining material allegations of the petition are substantially as follows. The defendant has injured and damaged the plaintiff in the sum of $125,000. The injury and damage to the plaintiff occurred at approximately 8 a. m., on December 10, 1954, at a public railroad crossing located about 200 yards north of the city limits of the City of Acworth, Georgia, at what is known as the Lance Crossing in Cobb County. There is a public road known as Railroad Street running parallel with the railroad on the east and northeast side thereof in the vicinity of the crossing where the collision between the plaintiff's automobile and the defendant's train occurred. There is a public road running approximately at right angles from the west side of Railroad Street across the railroad to the public highway paralleling the railroad, known as the old U. S. Highway No. 41, now State Route No. 293, which is the crossing known as Lance Crossing. The area in the vicinity of this crossing is a thickly populated settlement, and a large number of people pass over the crossing at all hours of each day and night. The railroad has been running through this community for more than 100 years and the defendant had full knowledge of the uses being made of the crossing. On December 10, 1954, and for many years prior thereto, the defendant was and had been required to maintain the public railroad crossing and its ramps and approaches under the provisions of Code, §§ 94-503, 94-504, 94-505, and 94-506. On December 10, 1954, the defendant was not maintaining the crossing in such a manner that a traveller could get on and off the crossing safely and conveniently as required by law for the reasons that: (a) It was maintained at a height of approximately five feet above the level of Railroad Street, so that one traveling on Railroad Street and intending to turn in a westerly direction across the railroad is so much below the level of the railroad tracks and is so close to a curve in the railroad track to the south of the crossing (the curve being some 200 feet south of the crossing), that he cannot see the approach of a train from a southerly direction until he has proceeded up the ramp and the front of his car is so close to the tracks that the portion of an approaching train extending eastwardly upon the track will strike the front end of his automobile. The ramp leading from the street to the tracks is only some 30 feet in length, making a very steep incline. The ramp is so steep that after one has stopped, looked and listened, at the bottom of the ramp he has to accellerate the motor of his automobile sufficiently to pull up the ramp and thereby increase the noise of the motor of the car which makes it more difficult for him to hear; (b) the crossing was maintained at an approximate width of 15 feet, barely leaving room for two cars to meet (a car being approximately six feet in width); (c) the railroad crossing was maintained at a height of some 15 feet above the level of the old U. S. Highway No. 41, now State Route No. 293, and the defendant maintained an approach ramp of approximately 94 feet in length, so that the drivers of cars attempting to cross the railroad could not see cars approaching from the opposite direction, and for that reason had to maintain a sharp lookout for cars that might pop up on the crossing from the opposite direction causing a collision between such automobiles on the crossing, and for this reason required a constant alertness and watchfulness on the part of such drivers to observe the approach of oncoming automobiles. There were many times more automobiles traversing the crossing from both directions than there were trains, so that the hazard of a collision with another automobile on the crossing was much greater than with an approaching train; (d) at the time of the collision, the crossing and the approaches thereto were defectively maintained by the defendant. The surface was not smooth but was rough and very irregular, and had holes in it that tended to pull automobiles out of their course of travel, making it necessary to watch for these holes in order to attempt to miss them, thus diverting the attention of drivers to the driving and making it more difficult to watch for approaching trains while traversing the crossing. The defendant knew of these conditions, and was bound, in the use of due care, under Code, § 94-506(1) to maintain watchmen at the crossing at the time trains were approaching, or (2) to reduce the speed of approaching trains so as to avoid doing injury to any person or property which might be on the crossing and to permit travellers time to escape from the crossing to a place of safety on the approach of a train. The plaintiff's injury and damage occurred at this crossing and resulted from a collision between one of the defendant's north-bound freight trains, the name and number of which is unknown to the plaintiff but well known to the defendant, and the plaintiff's 1954 Dodge automobile. The plaintiff's home is located on the east side of Railroad Street about 125 yards north of Lance Crossing. At approximately 8 a. m., on December 10, 1954, he drove his automobile from his home in a southerly direction down Railroad Street, partially turned right to go westerly to the old U. S. Highway No. 41, then stopped at the railroad crossing sign at the bottom of the ramp on that street, looked and listened for the approach of a train, saw and heard none, completed his right turn, and then proceeded up the ramp to cross the railroad, and while he was traversing the railroad tracks the defendant's train 'blazed' from a southerly direction into the plaintiff's automobile, striking the left front part of the left fender, slicing across the front end of the car, warping, twisting and breaking it as it went, finally picking it up so as to turn it over completely and hurling it against a telephone pole located on the westerly side of Railroad Street, where the automobile came to rest. The automobile was hurled with such terrific force that both the rear axles were broken, the drive shaft was torn away from the motor, and the whole front end of the car, including the frame, was warped and bent partially to the right, breaking the motor from the frame and crushing the whole front end of the car so that the car is a total loss. The plaintiff's body was torn out of the automobile and hurled 76 feet through the air to a point on the easterly shoulder of the railroad bed, causing him to suffer serious enumerated injuries. Because of his injuries the plaintiff has suffered constant and almost unbearable pain since the date of the collision, and will continue to do so the rest of his life for which he is entitled to recover just and adequate compensation. The plaintiff was at the time of his injury an able-bodied man, 29 years of age. He had a life expectancy of 35 years, according to the Carlisle Mortality Table, and was capable of earning the sum of $4,576 per year, but because of his injury his earning capacity has been destroyed, and he is entitled to recover for the full value of his life. The plaintiff's medical and hospital expenses up to the present time totals $2,604. In conjunction with the acts of negligence already stated, which contributed to the proximate cause of the plaintiff's injury and damage, the proximate cause of his injury and damage was the defendant's negligence in the following particulars: (a) In operating its train in its approach to the crossing at a speed so great (60 miles per hour) that it...
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