(Syllabus by the Court.)
Certiorari from Court of Appeals.
Suit by M. E. Henderson and others against the Western & Atlantic Railroad. Judgment for plaintiffs was affirmed by the Court of Appeals (36 Ga. App. 679, 137 S. E. 855), and defendant brings certiorari. Affirmed.
Mrs. Mary E. Henderson filed suit against the Western & Atlantic Railroad, seeking to recover damages for the homicide of her husband, which was alleged to have been caused by the negligence of the defendant and its servants and employees. It is alleged that a train of the defendant struck an automobile truck driven by the plaintiff's husband as it was crossing the railroad tracks on the crossing of a public road and the railroad. The plaintiff's husband was killed, and the widow sues for the value of his life. The specific allegations of negligence in the petition were: (a) Failing to maintain the crossing in proper condition and repair; (b) failing to give warning and signal of the approach of the train by blasts of the locomotive whistle; (c) failing to keep a proper lookout after reaching the blowpost; (d) failing to check the speed of the train after seeing deceased crossing the tracks; (e) accelerating the speed of the train and running into the truck; (f) running at the great and dangerous speed of 40 miles per hour upon and over the crossing; (g) failing to stop the locomotive after the danger was apparent to the employees of defendant in charge of the same; (h) not having the locomotive under control in approaching the crossing.
The Maryland Casualty Company intervened, alleging that under the Georgia Workmen's Compensation Act (Laws 1920, p. 167) it was the insurer of the Coca Cola Bottling Company, the employer of the plaintiff's deceased husband, and that as such insurer it had paid certain sums to the plaintiff, and prayed that if defendant were found liable for the death the said casualty company be subrogated to the right of the plaintiff, to the extent of reimbursement for the payments so made. Upon the trial the jury returned a verdict for the plaintiff for $10,000, and in favor of the casualty company upon its intervention. The defendant made a motion for a new trial, which was overruled. It carried the case to the Court of Appeals, which court granted a new trial upon one exception alone, that the court had erroneously instructed the jury as to the claim of the casualty company. 35 Ga. App. 353, 133 S. E. 645. The court held that the remaining assignments of error were not meritorious. Thereafter the plaintiff amended her petition by alleging as additional negligence of the defendant that at the time her husband was killed the engineer of the train which killed him was very nearsighted, in fact practically blind in one of his eyes, which condition had existed for a long time prior to her husband's death and grew worse until his death, and that defendant was negligent in permitting such engineer to run said train. The defendant amended its answer, which contained general denials of the allegations of negligence, by alleging: (1) That the accident was caused solely by the negligence of the deceased; (2) that he was not in the exercise of ordinary care at
the time; (3) that he was himself guilty of negligence which contributed approximately to his death.
Upon a second trial of the case the jury returned a verdict for the plaintiff for $15,000, and in favor of the intervention of the casualty company. The defendant moved for a new trial, which motion was overruled, and the defendant again carried the case to the Court of Appeals, which affirmed the judgment overruling the motion. 36 Ga. App. 679, 137 S. E. 855. Thereupon the defendant railroad presented in this court its petition for certiorari, and the writ was granted.
In the petition for certiorari the assignments of error are set forth as follows:
"I. In its motion for new trial the defendant complained of error in the refusal of the judge of the trial court to give in charge to the jury the following written request to charge, made by its counsel at the proper time: 'Although a presumption of negligence arises against the defendant if it appears from the evidence that plaintiff's deceased husband was killed by the running of defendant's locomotive or cars, yet the defendant can defeat a recovery by plaintiff by establishing either one of the following defenses: (1) That defendant and its employees exercised all ordinary and reasonable care and diligence to avoid the injury. (2) That the killing of plaintiff's deceased husband was proximately caused by his own negligence. (3) That the plaintiff's deceased husband, by the use of ordinary care on his part, could and should have avoided the injury to himself although caused by the negligence of defendant or its employees. (4) That if both the plaintiff's deceased husband and defendant's employees were negligent in causing the death of said deceased, the negligence of said deceased was equal to or greater than the negligence of defendant and its employees. The court instructs the jury that if the defendant establishes, by a preponderance of the evidence, either of said four defenses, the plaintiff would not be entitled to recover any damages of defendant.' The refusal to give this request in charge was made ground numbered 7 of the amendment to the motion for new trial. The Court of Appeals ruled that the refusal to give this request in charge was not reversible error. The refusal was excepted to by defendant, in its said amended motion for new trial, because the same was a correct and appropriate instruction, and was material and necessary in view of the fact that the judge of the trial court, after stating to the jury the contentions of the parties, immediately charged them as follows: T charge you that, when it has been made to appear that injury or damage has occurred by reason of the operation of the locomotive and train of cars of a railroad company, the presumption arises that the railroad company and its employees were negligent in each of the particulars specified in the plaintiff's petition, and the burden thereupon shifts to the railroad company to show that its employees exercised ordinary care and diligence in the particulars wherein they are alleged to have been negligent, and unless it does so, the fact of the injury or damage having been made to appear, the plaintiff, suing for recovery of damages by reason ofsuch injury, would be entitled to recover'— which charge so given allowed defendant only one defense, which was to show by a preponderance of the evidence, in the event it appeared that deceased was killed by operation of the locomotive or train, that its employees exercised ordinary care and diligence in the particulars wherein they were alleged to have been negligent, and that unless defendant did so the plaintiff would be entitled to recover. Your petitioner respectfully contends that in ruling that it was not reversible error to refuse to give such requested instruction to the jury the Court of Appeals committed error, because the effect of said refusal, taken in connection with the charge given, as hereinbefore quoted, was naturally to leave the jury under the impression that defendant's defense was limited as hereinbefore stated.
"II. In ground numbered 10 of the amendment to its motion for new trial defendant complained of error in the refusal of the judge of the trial court to give in charge to the jury the following written request to charge, made by its counsel at the proper time: 'Where the view or hearing of a traveler approaching a railroad crossing is obstructed, he is under the duty of using greater care and prudence in looking and listening for approaching trains than where there is no obstruction; the degree of care which he must exercise in such a case, particularly where he is familiar with the crossing, must be in proportion to the increase of danger, and must be such care and prudence in looking and listening as an ordinarily prudent man would exercise under like circumstances of obstruction of view or hearing; and if he fails to use such care whereby he is injured, he is guilty of contributory negligence barring any right of recovery.' The Court of Appeals ruled and decided that the refusal to give to the jury this requested instruction was not reversible error. The refusal was excepted to by the defendant in its said ground of its amendment to the motion for a new trial, because it was a correct and appropriate instruction on a material issue in the case. The only portion of the charge of the court touching on the subject-matter of this request to charge was as follows: 'I charge you if, when the plaintiff's husband approached the crossing in question, he found his view of the railroad track, and of the crossing, and of any train that might be approaching thereto, obliterated at the time by obstruction, the law required of him the degree of care commensurate with the danger of the situation, and such degree of care as an ordinarily prudent person would have exercised under such circumstances. If he failed to exercise that degree of care, and if his failure so to do resulted in his death, the plaintiff is not entitled to recover.' Movant contends that the said quoted charge related solely to obstructions to the view of the deceased, whereas the requested instruction related to both sight and hearing, and that it was as material to charge as to obstruction of hearing as with reference to obstruction of view. The Court of Appeals held and decided that it was not reversible error to refuse to give said requested instruction. In so holding, your petitioner respectfully contends, the said court committed error, because the instruction requested was a pertinent statement, legally ap
plicable to issues in the case, and the failure to charge as to obstruction of hearing as well...
