Western & A.R. Co. v. Jarrett
| Decision Date | 15 May 1918 |
| Docket Number | 9419. |
| Parties | WESTERN & A. R. CO. v. JARRETT ET AL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
There was evidence from which the jury could infer negligence on the part of the defendant; and whether the consequences of that negligence could have been avoided by the exercise of ordinary care on the part of the deceased or her husband was an issue of fact for their determination, and not for determination by this court. The trial judge having declined to exercise the discretion vested by law in him alone, and to set aside under the general grounds of the motion for a new trial, the verdict for the plaintiff, which was supported by some evidence, this court must of necessity hold that there is no merit in those grounds.
There is nothing in the record to suggest bias or prejudice on the part of the jury, and the verdict cannot be set aside as excessive, since the amount thereof could have been arrived at under the proof submitted, taking into consideration that the deceased was a wife and mother. Standard Oil Co. v. Reagan, 15 Ga.App. 571, 572, 84 S.E. 69(9).
While the plea denied negligence on the part of the defendant, and distinctly alleged that the homicide resulted from a failure on the part of the deceased or her husband (one of the plaintiffs) to exercise ordinary care, contributory or comparative negligence was not pleaded in reduction or mitigation of damages, and therefore this defense was not directly involved in the case, and in the absence of any timely request in writing for such an instruction, the failure of the court to instruct the jury in regard thereto does not constitute reversible error.
While it may be true as a matter of fact that a railroad track is a place of danger, and one going thereon must exercise such a degree of care and diligence for his own safety as a man of ordinary care and prudence would exercise under similar circumstances, the judge did not err in declining so to instruct the jury in compliance with a written request. Neither did he err in declining to give a requested charge as to the duty of the plaintiff J. F. Jarrett in attempting to pass over a railroad public crossing in an automobile. Both requests called for an intimation of opinion as to what would constitute negligence and as to a matter of fact, and the requested charge last mentioned was decidedly argumentative in form. While in the case of Western & A. R. Co. v Ferguson, 113 Ga. 708, 713, 39 S.E. 306, 54 L.R.A. 802 it is declared that a railroad track is a place of danger and that one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track, it is not there held, nor has it been elsewhere ruled by our Supreme Court or this court, that an instruction to the jury to this effect would be proper, in view of the mandatory inhibition of section 4863 of the Civil Code, and of the repeated rulings of the Supreme Court and of this court that questions of negligence are for the jury.
Considered in connection with the entire charge, there is no merit in the various grounds of the motion for a new trial assigning error upon the instruction given as to the measure of damages for the life of the deceased. The court expressly instructed the jury, in estimating the present cash value of that life that they should diminish or decrease the figures used in the mortality table, in accordance with "the facts in the particular case under investigation," and further expressly called attention to the diminished capacity to earn money, resulting from advancing years, and directed them "to be governed by the facts and circumstances as proved, feebleness of health, actual sickness, the loss of employment, voluntarily abstaining from work, the increasing infirmities of age, with a corresponding diminution of earning capacity, and other causes," and directed them to make proper allowance and deduction for any diminution in earning capacity resulting from any of these causes. The remaining objections urged as to the instruction as given are without merit.
There is no substantial merit in any of the other assignments of error, and the trial court did not err in overruling the motion for a new trial.
Additional Syllabus by Editorial Staff.
In an action for death on railroad track, charge that, if railroad and its employés were negligent and plaintiff or his deceased wife were negligent, plaintiff might recover, if negligence did not amount to failure to exercise ordinary care, and if ordinary care would not have avoided the homicide, was not objectionable, as authorizing a verdict against defendant for any negligence of its employés, without restricting it to acts of negligence alleged, in view of charge limiting recovery to negligence alleged.
Such charge was not objectionable as authorizing a verdict against defendant if plaintiffs' negligence did not amount to a failure to exercise ordinary care, though one of them failed to exercise such care, as the jury must have understood that the failure of either plaintiff to exercise ordinary care would defeat any recovery.
Such charge was not lacking in clearness, or confusing, when taken in connection with the entire charge.
In such action, a charge that occurrence of injury raised a presumption that the railroad was negligent in particulars alleged in the declaration, and that the burden was upon it to show the exercise of ordinary care and that unless it did so plaintiffs could recover, if in the exercise of ordinary care they could not have avoided the injury, was not objectionable as permitting a recovery if either plaintiff or his deceased wife could not have avoided the injury by the exercise of ordinary care, though one of them could have done so.
Error from Superior Court, Bartow County; M. C. Traver, Judge.
Action by J. F. Jarrett and others against the Western & Atlantic Railroad Company. Judgment for plaintiffs, motion for new trial overruled, and defendant brings error. Affirmed.
Tye, Peeples & Tye, of Atlanta, and Neel & Neel, of Cartersville, for plaintiff in error.
Atkinson & Born, of Atlanta, and J. R. Whitaker, of Cartersville, for defendants in error.
We do not deem it necessary to consider in detail all the questions passed upon in the headnotes above, or to refer specifically to the grounds of the motion for a new trial which are covered by the general holding in the last headnote. Two of the grounds of the motion for a new trial, which are not specifically referred to in the headnotes, may perhaps require some slight reference.
The fourth ground of the motion for a new trial assigns error upon the following charge:
"If the defendant company and its employés were negligent, and the plaintiff J. F. Jarrett, or his wife, Mrs. J. F. Jarrett, were negligent, the plaintiffs might nevertheless recover if the negligence of the plaintiff J. F. Jarrett, or the negligence of his wife, did not amount to a failure to exercise ordinary care, and if they could not by the exercise of ordinary care have avoided the homicide."
It is insisted (a) that this charge authorized the jury to find a verdict against the defendant for any negligence of the defendant or its employés, without restricting the same to the acts of negligence complained of in the plaintiff's petition. The reply to this objection may be found in the explicit instruction elsewhere given to the jury that: "The plaintiffs, if entitled to recover, would be entitled to recover solely on account of the acts of negligence alleged in their petition, if those acts occurred, and if they were negligent acts, and if the homicide occurred as a proximate result thereof."
Neither is the objection (b) well taken, that this charge authorized the jury to find a verdict against the defendant if the negligence of either the plaintiff J. F. Jarrett or the negligence of his wife (the deceased) did not amount to a failure to exercise ordinary care--that it permitted "a recovery by plaintiffs if either the plaintiff J. F. Jarrett, or his wife, Mrs. J. F. Jarrett, was negligent in a less degree than the exercise of ordinary care, even though the other one of said persons was negligent to a degree amounting to a failure to exercise ordinary care." The court instructed the jury that a recovery might be had if the defendant was negligent, and Jarrett and his wife were likewise negligent, in the event "the negligence of the plaintiff J. F. Jarrett, or the negligence of his wife, did not amount to a failure to exercise ordinary care, and if they [italics ours] could not by the exercise of ordinary care have avoided the homicide." Clearly, the jury must have understood from this instruction that a failure on the part of either the plaintiff Jarrett or his deceased wife to exercise ordinary care would defeat any recovery.
Likewise the objection (c), that this instruction was lacking in clearness and was confusing, when considered in connection with the entire...
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