Western & Atlantic Railroad v. Abbott

74 Ga. 851, 1885 Ga. LEXIS 456

Opinion

Lumpkin, Judge.

The plaintiff below, W. R. Abbott, was a passenger on a train of the Western and Atlantic Railroad Company, which left Atlanta at 5 o’clock p. m., October 15th, 1881. This train reached Acworth, the station at which he was to leave it, after dark and behind time. At this station, it met another passenger train going towards Atlanta, and took a side track for that purpose, leaving the main line and another track between it and the depot. The down passenger train came in on this main line. According to the plaintiff’s testimony, there was an embankment on the right side of the track, on which his train was standing, which made it difficult to leave the train from that side; and besides, it was the side opposite from the depot and the town of Acworth. He also testified that between this side track and the main line the ground was rough and irregular, and there was a ditch or cut some 18 inches in depth. The testimony was conflicting as to the condition of the ground around and between these tracks, witnesses for defendant representing them to be in good condition.

Plaintiff stepped off his train, and heard some one on the baggage car call out, “ claim your baggage,” or “ here’s your baggage,” walked on the main line, started towards the baggage car, and was almost immediately struck by the engine of the down passenger train, and seriously and permanently injured. He had on the baggage car a small trunk and an oil can. It was a matter in dispute whether the former was checked or not. The custom of the company was to deliver checked baggage to the station agent, from whom the passengers would receive it, but the plaintiff claimed that he thought it was his business to get his trunk off the train himself, and understood the call about the baggage, above mentioned, to be addressed to him. He also swore that the engine of the train on which he came was blowing off steam and making a sort of fog when he stepped off. The testimony was conflicting as to the difference in time of the arrival of the two trains at Acworth that night, and also as to the rate of speed at which the down passenger was traveling when its engine struck the plaintiff, the rate being variously estimated at from six to 12 miles per hour. There was a public crossing about 35 or 40 yards from the depot, over which this train had just passed before the injury took place. The servants of the company on the engine testified that the train was under full control, and tnat they did everything they could to avoid striking plaintiff. The jury found for him five thousand dollars.

1. It was insisted by counsel for plaintiff in error that the court erred, in view of the facts of this case, in charging the jury that the law required the company to “ make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.”

The charge excepted to is in the very language of the statute. Whenever the simple fact appears, that one has been injured by the running of the locomotive, or cars, or other machinery of a railroad company, the presumption immediately arises that the company’s servants were negligent, and the company must make the contrary appear. This may be done, however, by any testimony in the case, no matter by which side introduced. The presumption against the company may be rebutted by any facts stated by the plaintiff himself, or his witnesses?, which in any way show that the servants of the company showed proper diligence- or were not in fault, and if such is made to appear by the plaintiff’s testimony, it is a sufficient compliance by the company with the demand of the law. In many cases, very slight evidence should remove the presumption against the company, but unless this is done by some testimony, that presumption must stand, for so the law is plainly written.

2. As was held by this court in the case of The Western and Atlantic Railroad Company vs. Meigs, decided during the present term,

Footnotes

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* it is proper for the court to instruct the jury,on the law of contributory negligence and apportionment of damages, when the testimony would warrant them in finding that both parties were at fault, and there was such testimony in the case now under consideration. It is the duty of the court to charge the jury upon the law applicable to all conclusions of fact which they may reasonably reach from the evidence.

3. In cases of this character, the jury are authorized, if they see proper to do so under the testimony, and are thereby justified in so doing, to allow the plaintiff compensation for the pain and suffering occasioned him. The court left this question fairly to the jury, instructing them that, if the plaintiff was entitled to recover at all in this case, and if the facts authorized any damages for pain and suffering, the enlightened conscience of an impartial juror was the only legal guide by which the measure of such damages could be ascertained.

4. It was contended by counsel for plaintiff in error, that the verdict was contrary to, and unsupported by, the evidence, and was excessive.

These questions were passed upon by the court below, who was satisfied with the verdict, and in the exercise of the discretion vested in him by the law, refused to grant a new trial. This court has repeatedly ruled that, under these circumstances, the verdict will not be set aside, if there was any evidence to sustain it. Under the testimony in this case, in view of this rule, which is now well established, this verdict can be sustained. If the jury believed those portions of the testimony most favorable to the plaintiff, and disbelieved those portions of it most favorable to the defendant, they were authorized to find that defendant had not provided a suitable and safe exit for passengers to leave its trains at Acworth; that its servants had not observed proper caution in running over the crossing near this depot;'that the train was running too fast when the engine struck plaintiff; that no sufficient warning of its approach was given, and other facts tending to show negligence and the want of reasonable care. These considerations doubtless influenced the judge below to refuse a new trial, and under the rule above mentioned, it is the judgment of this court that this verdict shall stand. Speaking for myself alone, and with diffidence, I feel constrained to say, that if this rule was less stringent, and if this court felt authorized to scrutinize more closely the propriety of verdicts in such cases, I would have been in favor of granting a new trial in this case, on the idea that the plaintiff, by the exercise of ordinary care, could have prevented this injury to himself, even if the- defendant was somewhat in fault.

Judgment affirmed.

See next ease.