Western & A. R. R v. Frazier

Citation18 S.E.2d 45
Decision Date02 December 1941
Docket NumberNo. 29093.,29093.
PartiesWESTERN & A. R. R. v. FRAZIER.
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court.

1. It was error for the court to refuse a correct request to charge the jury specifical ly as to a vital point in the case although the charge as given in general terms may have included the subject of the request.

2, 4. If an injury would have occurred notwithstanding the alleged acts of negligence on the part of the defendant, there could be no recovery; and it was error for the court to refuse so to instruct the jury on a written request.

3. Exceptions to that part of the charge in which the court recited in the general terms the contentions of the plaintiff are not sustainable, there being no erroneous statement which could have injured the defendant

5. The instruction with reference to the alleged duty of the defendant to anticipate the presence of the plaintiff at the time and place of injury was not erroneous for the reasons stated in the exception.

6. The instruction as to the place where the plaintiff alighted from his train was not erroneous.

7. Refusal to give a requested charge which was sufficiently covered by the charge as given was not error.

8. Failure of the court to instruct the jury about an alleged act of negligence by the plaintiff was not error when the evidence did no* show any facts from which the jury could find that the act was negligent or was the proximate cause of the injury.

9. A request to charge the jury which was inaccurate and argumentative was properly refused.

10. An allegation by the plaintiff of a specific act of negligence on the part of the defendant, which is not withdrawn by amendment or by a disclaimer in open court, remains as a part of the petition. It was error for the court to refuse a request to instruct the jury about this allegation, where the judge did not refer to it while reciting the contentions of the plaintiff when he told the jury that they could look to the pleadings to ascertain the contentions of the parties.

11. In the absence of a request for an instruction, it was not error for the court to fail to mention specifically the probable decrease in earning capacity due to increasing age, when the charge as given clearly allowed the jury to consider such a circumstance in computing the damages.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by J. T. Frazier against the Western & Atlantic Railroad for personal injuries allegedly sustained when plaintiff was struck by defendant's train. To review a judgment for plaintiff, defendant (brings error.

Reversed.

Tye, Thomson & Tye, of Atlanta, for plaintiff in error.

Hewlett & Dennis and T. F. Bowden, all of Atlanta, for defendant in error.

STEPHENS, Presiding Judge.

J. T. Frazier brought suit against Western & Atlantic Railroad in which he alleged that he was a yard conductor for the Southern Railway, and that his duties at times required him to make deliveries of cars to the yards of the defendant; that for the purpose of interchanging cars there was a transfer track connecting a track of the Southern Railway with the southbound main line of the defendant; that upon reaching the switch at the defendant's main line he alighted from the engine on which he had been riding in the space between the defendant's north-bound and south-bound tracks, so that he might give a signal to his engineer to go forward to the defendant's yards and after the passage of his train to throw the switch connecting the transfer track with the defendant's south-bound main line; that, having given the signal and while his train was proceeding, he heard a noise to the south, quickly turned his head in that direction and was immediately struck by a train of the defendant which was then proceeding over a north-bound main line, which train consisted of two freight cars being pushed by an engine in the northerly direction; that the defendant failed to have any person stationed on the forward end of the freight car to act as a lookout and give warning signals to him; that as he dismounted from his engine he looked southwardly and saw no approaching train on the defendant's tracks nor did he hear the same at any time until the instant before he was struck; that the train was being run at the reckless speed of thirty miles per hour; that no lights were displayed on the forward end of said freight car and no warning of any kind was. given him; that the purpose and use of the transfer track, in the exercise of ordinary care, should have been known to the defendant and its servants in charge of the train; that by reason of the impact he received

severe and permanent injuries; that his injuries were solely occasioned by the defendant's negligence as follows: (a) In running the train at the reckless rate of speed aforesaid having in view the character of the locality; (b) in failing to maintain a lookout on the end of the forward car of its train; (c) in failing to give a signal or warning by bell or whistle of the approach of the train; (d) in failing to have the forward car equipped with a back-up hose by which the emergency brake might have been immediately applied; (e) in failing to place a light on the forward end of the train; (f) in failing to anticipate the presence of the plaintiff at the time and place and to control the movements and speed of the train so as to avoid doing injury to him. In an amendment the plaintiff added a specification of negligence as follows: (g) In failing to stop the train after having knowledge of the presence of the plaintiff between its tracks.

The defendant filed an answer denying the allegations of negligence and alleging that the sole proximate cause of the plaintiff's injury was his own negligence, in that he did not exercise ordinary care for his own safety at the time of his injury. In two amendments to the answer the defendant elaborated its allegation as to the plaintiff's negligence by alleging that, instead of swinging off his engine to the east side of the track between its main lines, he should have alighted on the west side where was situated the stand and lever of the switch which he was intending to throw. The defendant further alleged that the plaintiff was familiar with the nature and use of the north-bound main line, and if he had looked southwardly before alighting from his engine he could have seen an approaching train on this main line for a distance of more than 700 feet, and that he did not look when he dismounted from the engine and did not use his sense of sight in an ordinarily diligent manner. The defendant denied that its servants who were operating the train had any notice or knowledge that any member of the crew of an engine using the transfer track would swing off between the main-line tracks at such point, and alleged that the plaintiff swung off when the lead car of the Western & Atlantic train was within approximately forty feet of the place where he swung off, and though the employees in charge of the Western & Atlantic train did all within their power to prevent inju-ry to the plaintiff and immediately applied the brakes in emergency, it was impossible to stop the train before it passed the point where the plaintiff swung off. The defendant further alleged that its train was operated with all due care and caution, that the speed was the usual and customary speed for switching movements, and that it had placed two switchmen on the forward car who were keeping a diligent lookout in the direction in which the train was moving; that these switchmen both saw the plaintiff swing off his engine and holloed to him as loud as they could, and gave the engineer a stop signal, and that the engineer immediately applied his brakes in emergency.

The defendant further alleged that the plaintiff knew the character and use of the defendant's main-line tracks and of the interchange track which runs in a northerly direction from the southern track to the defendant's south-bound main line, a distance of 480 feet; that during the entire time the Southern engine and cars were traveling over the interchange track the Western & Atlantic train was approaching on the north-bound main line, and was clearly visible by the plaintiff had he looked in the direction from which the Western & Atlantic train was approaching; that when the Southern Railway train reached the switch connecting the interchange track with the south-bound main line-track the plaintiff suddenly swung off his engine to the east of the track and in the space between the south-bound and north-bound main lines, without looking back to see whether or not any train was approaching on the north-bound main line. The defendant further alleged that the movement in which the Southern Railway train was engaged necessitated the use by it of the defendant's south-bound main line and a crossing over of the defendant's northbound main line by the train, and in using these tracks the crew of a Southern Railroad switch engine were governed by the instructions and rules of the defendant with reference to such use, that among such rules it was provided that before the tracks could be used for such movement the foreman of the Southern Railway crew should telephone the operators at Bolton and at tower No. 1 to ascertain from them the location of such trains and engines using main tracks that might be affected in the contemplated movement, and that the plaintiff made no inquiry or effort to ascertain from the operator at tower No. 1 whether or not such track was being used by any engine or train, and that at the time of the injury the defendant's engine and cars were making a switching movement on the north-bound track in a northerly direction, passing by tower No. 1 shortly before the time the plaintiff was injured, and that if the plaintiff had telephoned the operator in tower No. 1 he would have...

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4 cases
  • Southern Ry. Co v. Garland
    • United States
    • Georgia Court of Appeals
    • 21 Febrero 1948
    ...v. Nes-bit, 191 Ga. 821, 847, 14 S.E.2d 64; Georgia Ry. & Power Co. v. Head, 155 Ga. 337 (3), 116 S.E. 620; Western & Atlantic R. Co. v. Frazier, 66 Ga.App. 275(9), 18 S.E. 2d 45. In our opinion, the general charge covered the request even though we assume it to be a correct one. In this co......
  • Western & Atlantic R. R. v. Frazier
    • United States
    • Georgia Court of Appeals
    • 2 Diciembre 1941
  • Davis v. Smith
    • United States
    • Georgia Court of Appeals
    • 4 Diciembre 1941
  • Davis v. Smith, 29084.
    • United States
    • Georgia Court of Appeals
    • 4 Diciembre 1941

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