Western & A.R.R. v. Gray

• Decision Date: 20 February 1931
• Docket Number: 7869.
• Parties: WESTERN & A. R. R. v. GRAY.
• Court: Georgia Supreme Court

157 S.E. 482

172 Ga. 286

WESTERN & A. R. R. v. GRAY.

No. 7869.

Supreme Court of Georgia

February 20, 1931

Rehearing Denied Feb. 28, 1931.

Syllabus by the Court.

Motion to dismiss writ of error made after argument of case in Supreme Court must be overruled (Supreme Court Rule 31).

The motion to dismiss the writ of error is overruled.

Rules applicable to duty of railroads generally are applicable by state's consent to railroad owned by state; crossing over right of way of state railroad may be shown by evidence to have been accepted for use as public road, as regards duty of railroad at crossing (Civ. Code 1910, § 1289).

Under the Civil Code of 1910, § 1289, the same rules which are applicable to the duty of railroads generally are applicable by the state's consent, to the Western & Atlantic Railroad, which is the property of the state. This legislation is of itself a dedication of either a public road or a private way over any portion of the right of way of the Western & Atlantic Railroad which may be shown by evidence to have been accepted for use as a public road or private way continuously used for a period of twenty years.

Code prescribing railroad's duty at crossing is applicable alike to public roads or private way (Civ. Code 1910, § 2673).

It was not error for the court to give in charge to the jury section 2673 of the Civil Code of 1910, which is applicable alike to public roads or private way. The Code section being applicable to both, the charge was proper, whether the jury determined from the evidence that the crossing was a portion of a public highway or of a private way.

Failure to instruct law applicable if railroad crossing where accident occurred was neither public nor private way not requested was not erroneous under evidence (Civ. Code 1910, § 2673).

It was not error for the court, in the absence of a timely written request, to fail to instruct the jury as to the law applicable in case that they found that the crossing was neither a public road crossing nor a private way. And especially was such omission not erroneous under the facts in the present case, and in view of the evidence that the road if not a public highway, was at least a much used neighborhood road.

Failure to give charge denying recovery if deceased failed to exercise care for own safety was not error, where otherwise charged.

The assignment of error contained in the eighth ground of the motion for a new trial is without merit. The court more than once instructed the jury that, if the plaintiff's husband, by the exercise of ordinary care, could have avoided the injury, the plaintiff could not recover.

Charge on liability, where both parties are at fault, and diminution of damages in proportion to deceased's default, were properly refused, where otherwise given.

The requested instructions set forth in the ninth and tenth grounds of the motion, though not given in totidem verbis were sufficiently presented in the charge to the jury, and again very clearly stated in conclusion, to wit: "I charge you that if the plaintiff's husband and the agents of the defendant company or the defendant railroad were both at fault, the plaintiff may nevertheless recover, but the damage should be diminished by the jury in proportion to the amount of default attributable to the deceased. I charge you further, in this connection, that if the plaintiff'shusband, by the exercise of ordinary care could have avoided the consequence to himself caused by the defendant's negligence, the plaintiff cannot recover, nor can she recover for any damage unless the amount of fault attributable to the deceased is less than the amount of fault attributable to the employees of the defendant."

Charge requiring deceased to use greater care under circumstances than otherwise required was properly refused as argumentative; charge requiring deceased to use greater care under circumstances than otherwise required was properly refused as invading province of jury; questions of negligence are for jury alone.

While a proper and timely request for instructions, which invokes the application of abstract principles of law concretely to the facts as developed in the particular case, should generally be granted, it was not error to refuse to instruct the jury that the plaintiff's husband should use a greater degree of care under the circumstances than he would otherwise be required to do, for the reason that such charge would have been argumentative, and also would have invaded the province of the jury, since all questions of negligence are for the determination of the jury alone.

Charge authorizing lump sum verdict for death of plaintiff's husband killed by train held proper.

It was not error, in the circumstances set forth in the twelfth ground of the motion for a new trial, for the court to instruct the jury that their verdict could be in a lump sum.

Testimony as to number and ages of children of plaintiff suing for death of husband killed by train was properly admitted.

There was no error in the admission of the testimony complained of in the thirteenth ground of the motion. Darby v. Moore, 144 Ga. 758, 87 S.E. 1067. Compare Central of Georgia Ry. Co. v. Prior, 142 Ga. 536, 83 S.E. 117.

Requested instructions that specified allegations of negligence being unsupported by evidence should not be considered were properly refused under evidence authorizing inference of negligence; requested instructions that specified allegations of negligence being unsupported by evidence should not be considered were properly refused as directing verdict; refusal to direct verdict is never error.

The refusal of requests for instructions contained in the fourteenth, fifteenth, sixteenth, seventeenth, and eighteenth grounds was not error, in view of circumstantial evidence adduced and inferences which could be reasonably raised, which would have authorized the jury to infer the existence of the negligence alleged. To have instructed the jury as requested would have amounted to the direction of a verdict as to each allegation withdrawn by the court, and it is never error to refuse to direct a verdict. Furthermore, it was not error to decline to give the instructions, in view of the court's charge "that the burden is on the plaintiff, Mrs. Gray, to prove her contentions of negligence, and that such negligence was the proximate cause of the injury or damage complained of, by a preponderance of the testimony."

Instruction on reducing value of life of deceased to present cash value stated correct rule for fixing damages; instruction on reducing value of life of deceased to present cash value did not deprive defendant of property without due process (Civ. Code 1910, § § 4424, 4425; Const. U.S. Amend. 14).

The instructions excepted to in the nineteenth and twentieth grounds were not subject to the criticism that the jury were not given any correct rule for fixing the measure of damages in the case. Nor did such instructions taken in connection with the context of the charge, tend to deprive the defendant of its property without due process of law, in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States. Since it appears from the record that under the evidence and the rules given in charge by the court, as to the measure of damages, the jury would have been authorized to return a much larger verdict in amount, even if deduction had been made for the necessary living expenses of the plaintiff's husband, it does not appear that the defendant was deprived of anything or lost anything within the meaning of the Fourteenth Amendment to the Constitution of the United States, so as to require a ruling at this time upon the unconstitutionality of sections 4424 and 4425 of the Civil Code of Georgia of 1910. Immediately before answering the inquiry of the foreman of the jury whether a verdict might be returned as a lump sum, the court fully instructed the jury as to the method of ascertaining the gross value of the life of the plaintiff's husband, and gave a popular rule for the reduction of the gross sum to its present cash value.

Charge submitting all grounds of negligence was not erroneous for failure to withdraw unsupported allegations of negligence against railroad; constitutionality of statute will not be adjudicated if judgment should be affirmed in absence of reference to constitutional question involved; act making proof of injury by railroad prima facie evidence of negligence held rule of evidence (Civ. Code 1910, § § 4424, 4425; Acts 1929, p. 315).

The charges of which complaint is made in the twenty-third and twenty-fourth grounds were not erroneous; and under the well-settled rule that the constitutionality of a statute will not be adjudicated if the result in the lower court should be affirmed, in the absence of any reference to the constitutional question involved, we forbear at this time to determine, as we should in a proper case, the constitutionality of sections 4424 and 4425 of the Civil Code of Georgia of 1910. The charge of the court construed the Code sections just mentioned, in the light of the act of 1929 (Acts 1929, p. 315), which is but a rule of evidence, and the charge was in conformity with the decisions of the Supreme Court of the United States in Mobile, etc., R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A. (N. S.) 226, Ann.Cas. 1912A, 463, and Western & Atlantic Railroad v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884.

The evidence, though in part circumstantial, supported the verdict. The court did not err in overruling the motion for a new trial.

Error from Superior Court, Catoosa County; C. C. Pittman, Judge.

Suit by Mrs. Helen N. Gray against the Western & Atlantic Railroad....