Western & A.R. Co. v. Slate
| Decision Date | 15 January 1919 |
| Docket Number | 9539. |
| Citation | 97 S.E. 878,23 Ga.App. 225 |
| Parties | WESTERN & A. R. CO. v. SLATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The exceptions taken pendente lite are without substantial merit and since the evidence was sufficient to authorize the verdict, it cannot be disturbed on the assignments made in the general grounds of the motion for a new trial.
It is the general rule that, in a suit for personal injuries, the negligence complained of cannot be shown by evidence of similar negligence on the part of the defendant on some other and different occasion (Central Railway Co. v Ross, 107 Ga. 73, 32 S.E. 904; Pullman Co. v Schaffner, 126 Ga. 609, 611, 55 S.E. 933, 9 L.R.A. [N S.] 407; L. & N. Railroad Co. v. Roberts, 7 Ga.App. 562, 67 S.E. 690); but where it is alleged that the injury was caused by the derailment of the defendant's cars at a certain named place, and that it was brought about by the dirt, coal, and cinders which had been allowed to accumulate upon that portion of the track, evidence of similar derailments, at the same point, while the same conditions existed relative to the condition of the track, would be admissible upon the theory of tending to show notice of such condition on defendant's part, if the prior derailments occurred at a time sufficiently close to the date of the injury to have probative value for that purpose (Gilmer v. City of Atlanta, 77 Ga. 688; C., C. & I. Railway Co. v. Newell, 104 Ind. 264, 3 N.E. 836, 54 Am.Rep. 312; Morse v. Railway Co., 30 Minn. 465, 16 N.W. 358; Brown v. Benson, 101 Ga. 753, 29 S.E. 215 [3]). While in this case the evidence as to the time when the previous and similar derailments took place is not as explicit as it might be, the admission of such doubtful testimony, when received for the purpose indicated, would not amount to harmful error, and authorize this court to set the verdict aside. See, in this connection, Central Railway Co. v. Duffey, 116 Ga. 346, 42 S.E. 510, where the evidence admitted related to an accident occurring on a different, but nearby, track. See, also, Savannah Florida & Western Ry. Co. v. Flannagan, 82 Ga. 579, 9 S.E. 471(3), 14 Am.St.Rep. 183.
Defendant offered as a witness an employé who would have testified that he had been accustomed to pass every night by the watchman's shanty in which the plaintiff employé was injured by the derailed car, and that he had seen the plaintiff in there "several times," usually, he thought, asleep, and that "several times" he looked in and saw him asleep. The rejection of this evidence is assigned as error. Held, evidence as to the general character for prudence or recklessness of the parties to such litigation is not admissible (A. & W. P. Railroad Co. v. Newton, 85 Ga. 517, 11 S.E. 776; Central Railroad Co. v. Kent, 87 Ga. 402, 13 S.E. 502; A. & W. P. Railroad Co. v. Smith, 94 Ga. 107, 20 S.E. 763); nor is it permissible to show particular instances of such negligence not manifesting such habitual habit and conduct ( East Tennessee Ry. Co. v. Kane, 92 Ga. 187, 18 S.E. 18 [4], 22 L.R.A. 315); and whether or not it is even permissible to prove "habitual acts of recklessness or negligence at particular times and places" for the purpose of showing such general habit, character and conduct (see the ruling on this subject in Savannah, Florida & Western Ry. Co. v. Flannagan, supra, and the comment made in A. & W. P. Railroad Co. v. Smith, 94 Ga. 107, 110, 111, 20 S.E. 763, on that ruling), we do not think that the evidence thus offered was illegally rejected, since the "several" indefinite and not particularized occasions referred to as having occurred within an indefinitely stated period could not properly show such habitual acts on the plaintiff's part. See, also, Georgia, Southern, etc., Railway Co. v. Thornton, 144 Ga. 481, 87 S.E. 388.
As being an erroneous statement upon the burden of proof, the following excerpt from the charge is excepted to: "If the plaintiff makes it appear to you, from the evidence, that he was injured by the running of the cars of the defendant, as alleged in his petition, the law would then presume that the defendant was negligent, and the burden would be upon the defendant then to show that it was not negligent, in so far as the particulars charged against it are concerned, or that, if the plaintiff was injured, he was injured by his own negligence, or that the plaintiff by the exercise of ordinary care could have avoided the consequences to himself of the defendant's negligence, if there was such, or that, if the plaintiff was injured, his injuries were due to some cause other than the defendant's negligence, if there was such, or that, if the plaintiff was injured, his injuries were due to some cause other than the defendant's negligence." Held:
(a) In an action for damages against a railroad company for negligence, resulting in injury to an employé, but not resulting in his death, the presumptions of negligence remained the same after the passage of the act approved August 16, 1909 (Civ. Code 1910, § 2782 et seq.) as theretofore provided by...
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