Central of Georgia Railway Co. v. Ray

58 S.E. 844, 129 Ga. 349, 1907 Ga. LEXIS 378

• Court: Supreme Court of Georgia
• Decided: August 16, 1907
• Status: Published

Opinion

Evans, J.

(After stating the facts.) In the amendment to the petition it was alleged that the engine which killed the plaintiff’s husband was .so constructed that it was impossible for the employees running the engine backwards to keep a lookout, or observe the track, because the tender was so high and wide that it completely obstructed and shut out the view of the track from those in charge of the engine, and made it impossible for them to see any one upon the track in the rear of the tender, when the engine was being run backwards. From the instruction given on this feature of the plaintiff’s case it is quite evident that the trial judge construed (and properly so) this allegation as an averment that the engine was not adjusted to the work of switching cars, where the engine was generally employed in moving both backward and forward, and the employment of an engine so constructed might be considered by the jury on the issue of the exercise of ordinary care by the defendant in the operation of an engine so constructed. The court charged: “Relatively to that question as to the construction of the engine, if the jury believe that the engine was of the kind in general use and reasonably suited to the business for which it was in use, then it would be for you to determine whether or not, in having one of that character, they had exercised ordinary care and reasonable care and diligence.” This charge is alleged to be erroneous, because if the jury should believe that the engine was of a kind in general use,- and reasonably suited to the business for which it was in use, they should not have been instructed that they might infer that the mere having an engine of this description was a failure to exercise ordinary care in the selection of one of this type. We think the charge is open to the criticism made of it. A railroad company, relatively to its employees, is bound to exercise ordinary care in furnishing machinery equal in kind to that in general use, and reasonably adapted to the uses to which it is put. Ala. Mid. Ry. Co. v. Guilford, 119 Ga. 523 (46 S. E. 655); Reed v. M., K. & T. Ry. Co., 94 Mo. App. 371 (68 S. W. 364). Its liability in this respect is limited to a failure to discharge this legal duty, Atla. Air-Line Ry. Co. v. Ray, 70 Ga. 674. This instruction was calculated to harm the defendant. The plaintiff charged the defendant with negligence: (1) -in selecting and using this t3rpe of engine, and (2) in operating it without lookouts. The defendant contended in reply that it had selected a type of engine such as was in general use, and reasonably suited to the use to which it was put; and that the plaintiff’s husband knew it operated this engine without lookouts or warnings, and that his death resulted because he was at a place where it was not his duty to be, and from his own failure to exercise ordinary care for his safety. The jury may have believed, under the evidence and the instruction of the court, that the defendant was not negligent in the operation of the engine; yet they were told, in effect, that even if the engine was of standard type, and was reasonably suited to the use to which it was put, still they might find the defendant negligent “in having one of that character.”

2. Complaint is made of an omission of the court, when charging on the subject of damages, to call the attention of the jury to the decrease in the earning capacity which naturally results from advancing age, probable loss of employment, inability to labor and to secure work. In the process of reaching a correct result from the evidence, juries may take into consideration such universal experiences in human life, as criteria in weighing the evidence in the particular ease. The judge may refer in his charge to such matters as the plaintiff in error complains he omitted in this case. Fla. C. R. Co. v. Burney, 98 Ga. 1 (26 S. E. 730). The jury are presumed to be as cognizant of these common phenomena of human experience as the judge; and if their attention is specially desired to be directed thereto, a timely written request should be made.

3. The attack on the other charges complained of relates more to the form of expression than to a misapprehension of the correct rules of law; and on the next trial the judge, in all probability, will so adjust his expressions as to relieve them of the criticism made in the assignments of error.

Judgment reversed.

All the Justices concur except Atkinson, J., who dissents.