Wright v. Dilbeck

• Decision Date: 02 July 1970
• Docket Number: No. 2,45020,Nos. 45010,s. 45010,2
• Court: Georgia Court of Appeals
• Parties: Rhoda L. WRIGHT, Administratrix v. Michael W. DILBECK et al. SOUTHERN RAILWAY COMPANY v. Michael W. DILBECK et al

Page 715

176 S.E.2d 715

122 Ga.App. 214

Rhoda L. WRIGHT, Administratrix v. Michael W. DILBECK et al.

SOUTHERN RAILWAY COMPANY v. Michael W. DILBECK et al.

Nos. 45010, 45020.

Court of Appeals of Georgia, Division No. 2.

July 2, 1970.

Rehearing Denied July 21, 1970.

Certiorari Denied Sept. 24, 1970.

Matthews, Maddox, Walton & Smith, James D. Maddox, Rome, Edwards, Bentley, Awtrey & Parker, Scott S. Edwards, Jr., Marietta, for appellant.

No. 45020:

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Randall L. Hughes, Atlanta, for appellant.

G. Robert Howard, Raymond M. Reed, Marietta, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

Michael W. Dilbeck, individually, and Michelle Ann Dilbeck, a minor, suing by and through her father and next friend, Michael W. Dilbeck, brought an action against Southern Railway Company and Rhoda Lee Wright, administratrix of the estte of John R. Wright, Jr., deceased, in which it was alleged that Mrs. Rebecca Ann Dilbeck, the wife of Michael W. Dilbeck and mother of Michelle Ann Dilbeck, was killed in a railroad crossing collision on November 2, 1966 in Cobb County, Georgia, at Mableton, where the defendant's railroad line crosses at grade on Church Street. At the time of the collision, Mrs. Rebecca Ann Dilbeck was riding in a Ford automobile driven by John R. Wright, Jr. It was alleged that the collision was caused by the combined neglgience of the defendant Southern Railway Company and the negligence of the driver, John R. Wright, Jr. John R. Wright, Jr., and Mrs. Rebecca Ann Dilbeck were killed as a result of the collision. The plaintiff sought damages for the full value of the life of the wife and mother. The defendant, Rhoda Lee Wright, as administratrix of the estate of John R. Wright, Jr., filed an answer denying the allegations of negligence as to John R. Wright, Jr., and alleging the collision was caused solely and proximately by the negligence of the Southern Railway Company and asserted a cross claim agianst the Southern Railway Company seeking to recover for pain and suffering of John R. Wright, Jr., and funeral expenses. Southern Railway Company answered, denying any negligence on its part and set up various defenses including a contention that the collision was caused solely and proximately by the negligence of the driver of the automobile. Southern Railway Company also denied the allegations of the cross claim. Upon the trial, which commenced January 27, 1969, and concluded on February 1, 1969, the jury returned a verdict in favor of the plaintiffs in the amount of $202,800 against the defendants Southern Railway Company and Rhoda Lee Wright, as administratrix, and in favor of plaintiff, Michael W. Dilbeck, in the amount of $1,650.00 against the same defendant; the jury, however, returned a verdict in favor of the defendant Southern Railway Company on the cross action brought by the defendant Rhoda Lee Wright, as administratrix. Both defendants filed motions for new trial and motions for judgments notwithstanding the verdict, both of which were overruled and separate appeals were filed in this court. Held:

1. Southern Railway Company Appeal The trial court did not err in refusing to permit the appellant to prove that the plaintiff had remarried subsequently to the death of the wife, as the subsequent marriage of the husband will not change the measure of damages to which he was entitled when his right of action accrued. See Georgia Railroad & Banking Co. v. Garr, 57 Ga. 277(1, 2). It does not appear that this evidence was necessary to explain or shed light upon any other phase of the case. This circumstance alone, that is, the fact of the remarriage of the husband, is therefore immaterial to the case.

2. There was no harmful error in refusing to admit evidence to show that the deceased, Mrs. Dilbeck, had filed suit for divorce against the plaintiff, Michael Dilbeck, and in refusing to admit in evidence a certified copy of the divorce proceedings as this evidence could in no way reduce the measure of damages, nor the damages recoverable, as the husband and child are entitled under the statute to recover the full value of the life of the deceased wife and mother; nor was this evidence admissible to disprove the following allegations of the petition: 'After her marriage, the said Mrs. Dilbeck, in addition to her usual household duties and the companionship, love and affection furnished to her husband and family * * *'. See Willitt v. Purvis, 5 Cir., 276 F.2d 129; Killian v. Augusta & Knoxville R. Co., 79 Ga. 234(6), 4 S.E. 165; Central of Ga. Ry. Co. v. Bond, 111 Ga. 13(3), 36 S.E. 299.

3. There was no error in admitting into evidence photographs, one of the mangled body of the deceased Mr. Wright, and one of Mrs. Dilbeck hanging out of the automobile, as the pictures tended to prove certain allegations of the pleadings relating to which of the deceased parties was driving, the force with which the locomotive struck the automobile in which Mr. Wright and Mrs. Dilbeck were riding, as well as the fact that the locomotive dragged the body of the deceased Mr. Wright a considerable distance. See in this connection Curtis v. State, 224 Ga. 870, 165 S.E.2d 150. While counsel for the plaintiffs commented to the jury on the nature of the pictures, no objection was made to these statements and these statements cannot make the introduction of the pictures erroneous.

4. Evidence as to collisions that have occurred on this particular crossing on several other occasions prior to the present occurrence and one subsequent thereto was admitted for the purpose of consideration as to whether or not the crossing was a dangerous crossing, and whether the railway had notice thereof and whether the railway under the circumstances had been negligent in failing to have crossing gates, or a watchman, or automatic warning devices to warn of the approach of a train at the crossing, and the jury were so instructed that the evidence was admitted for this purpose.

It was held in Williams v. Slusser, 104 Ga.App. 412(5), 121 S.E.2d 796: "The general character of the parties, and especially their conduct in other transactions, are irrelevant matter * * *' Code § 38-202. 'In actions for damages for injuries sustained in an automobile accident alleged to have been caused by the negligence of the defendant, the issue before the court is the negligence or non-negligence of the defendant at the time and place of the accident. 45 C.J. 1246, § 809. And each transaction must be ascertained by its own circumstances, and not by the reputation or character of the parties. 20 Am.Jur. 300, § 319. It is a general rule that in a suit for negligence, evidence of similar acts or omissions on other and different occasions is not admissible. Hollomon v. Hopson, 45 Ga.App. 762, 765(8), 166 S.E. 45.' Hawkins v. Benton Rapid Express, 82 Ga.App. 819, 828, 62 S.E.2d 612, 619.' See also Georgia R.R. & Banking Co. v. Walker, 87 Ga. 204(2), 13 S.E. 511; Butler v. Central of Ga. Ry. Co., 41 Ga.App. 115(5), 151 S.E. 834; Central of Ga. Ry. Co. v. Ross, 107 Ga. 73, 32 S.E. 904.

However, the evidence here does not come within such ruling, as evidence of similar accidents given to illustrate the physical facts and that conditions are the same or similar is admissible for that purpose. See Louisville & Nashville Ry. Co. v. Bean, 49 Ga.App. 4, 5, 174 S.E. 209. See also City of Augusta v. Hafers, 61 Ga. 48, 34 Am.Rep. 95. It is stated in 75 C.J.S. Railroads § 847, p. 140 that: 'Proof of other accidents or near accidents at the same crossing at other times under the same or similar circumstances may be admitted for the purpose of showing the existence of dangerous conditions at the crossing and knowledge thereof on the part of the defendant. So also, as bearing on negligence in failing to maintain a watchman, gates, or an electric alarm bell, evidence as to the practice of running passenger trains at a high rate of speed over the crossing, on a down grade, is admissible, in connection with evidence as to the conditions on the question of whether it was unusually dangerous,' and in Georgia Cotton Oil Co. v. Jackson, 112 Ga. 620(4), 37 S.E. 873, it was held: 'When the parties to an action on trial were at issue as to whether or not a machine by which the plaintiff had been injured was, at the time he was hurt, out of order and operating in a dangerous manner, evidence tending to show that shortly thereafter, and while in substantially the same condition, this machine operated in a similar manner, and by so doing injured other persons, was relevant.'

It appears, therefore, that evidence meeting the standard, even of subsequent accidents, may be admissible for the purpose of showing the dangerous condition, although obviously not admissible for the purpose of showing notice of such dangerous condition prior to the accident under investigation. In order for such evidence to be admissible, however, it must appear that the physical conditions at the crossing on the other occasions were substantially similar to those at the time of the collision under investigation.

Some of the evidence objected to in the present case failed to meet this requirement; however, since the present case is being reversed on other grounds, we deem it sufficient to call attention to these factors so that on the subsequent trial of the case, the trial judge may limit the evidence to meet the standards herein set forth.

5. The trial court charged the jury as follows: 'Ladies and Gentlemen of the jury, I charge you that Georgia Code § 4-309 provides as follows: 'Notice to the agent of any matter connected with his agency shall be notice to the principal. " This charge was objected to on the ground that it 'was not adjusted to any issues in the charge (sic) and would be confusing to the jury and prejudicial to defendant railroad company.' This was an insufficient objection to the charge (United States Security Warehouse, Inc. v....