Western & Atlantic Railroad v. Wright

54 S.E.2d 655, 79 Ga. App. 733

• Court: Court of Appeals of Georgia
• Decided: June 22, 1949
• Docket: 32351, 32360.
• Status: Published

Opinions

1. The court did not err in overruling the motion to dismiss the motion for a new trial.

2. The court did not err in overruling the motion to dismiss the action, in the nature of a general demurrer.

3. Grounds 4 through 14 of the amended motion are without merit.

4. The verdict is so excessive as to indicate bias and prejudice or gross mistake.

5. The general grounds of the motion for new trial are not passed on.

DECIDED JUNE 22, 1949. REHEARING DENIED JULY 27, 1949. This action was brought by Mrs. Mamie Wright, as temporary administratrix of the estate of Oscar Petty, deceased, against Western Atlantic Railroad Company for the homicide of Oscar Petty allegedly caused by the negligent operation of the defendant's train. The original petition alleged substantially the following: that the main — line tracks of the defendant railroad run in a northerly and southerly direction through the corporate limits of Calhoun, Georgia; that a week or more prior to deceased's death, the defendant had placed several camp cars, which were used for living and sleeping quarters for members of the defendant's bridge gang, on a sidetrack located on the west side of the main-line track within the corporate limits of said town and north of the railroad depot; that the deceased, at the time of his death, and several months prior thereto had been employed by the defendant on said bridge gang as a cook and had been living in said camp cars as a member of the crew; that on May 27, 1945, about 6 p. m., while the deceased was returning to the camp cars for a resumption of his duties as employee of the defendant, and while attempting to enter one of said cars from the east side next to the main-line track, he was struck and killed by a freight train of the defendant traveling in a southerly direction on the main-line track; that said sidetrack on which the camp cars were located curved rather sharply to the east as it connected with the main line about 100 yards north of the car deceased was attempting to enter, thus cutting off his view of approaching trains from the north, there being two or more cars north of the one the deceased was attempting to enter; that on the west side of the sidetrack there was a steep descent of about 4 feet to level ground, making it impossible to enter said camp cars from that direction or any way other than from the side of the main-line track, which was separated from the sidetrack only sufficiently to permit cars to pass on said tracks without striking each other; that numerous fast trains pass daily on this track; that there is a public crossing about 150 yards north of the place where the deceased was killed, and another public crossing approximately 175 to 200 yards south of said place; that it was the custom of the deceased and other employees to use the entrance beside the main-line track, which was known to the agents of the defendant who operated said train; that the deceased did not hear or see any train, nor know of its approach; that said train was traveling at the fast and reckless speed of 60 miles per hour; that the deceased was an able-bodied man 37 years of age and had a reasonable life expectancy of at least 40 years; that he was earning $125 to $130 per month and was contributing $40 per month to the plaintiff for her support; that the following acts of negligence on the part of the defendant were the sole proximate cause of the deceased's death: (a) in placing camp cars in such a position that the only access was the entrance from the side of the main-line track, (b) in placing camp cars in such a manner that the view of approaching trains from the north was cut off from the deceased, (c) in failing to give any warning by whistle or bell of the approach of said train, (d) in failing to anticipate the deceased's presence and control said train to avoid doing injury to him, (e) in operating said train at a reckless rate of speed when passing said camp cars, (f) in running said train at a speed in excess of 25 miles per hour in violation of a municipal ordinance, and (g) in failing to maintain a constant and proper lookout. The plaintiff amended her petition in the following particulars: (1) by alleging that there were at least two camp cars on the sidetrack immediately south of the car the deceased was attempting to enter, and (2) "that the suction of the swiftly-moving train drew the deceased into the side of said train as it was passing him at the time."

The defendant filed a motion to dismiss the petition, in the nature of a general demurrer, on the ground that the petition as amended failed to set out a cause of action. To the overruling of this motion the defendant excepted pendente lite. The defendant also answered, denying the material allegations of the petition, and alleged that the negligence of the deceased was the proximate cause of the injury. When the plaintiff rested her case, the defendant moved for a nonsuit. This motion was denied. The jury returned a verdict for the plaintiff in the sum of $20,000, whereupon the defendant filed its motion for new trial. Before the hearing of this motion, the plaintiff voluntarily wrote off $10,000 of the verdict and judgment, leaving a balance of $10,000 with interest. The defendant's motion for a new trial was overruled and it excepted.

Counsel for the plaintiff in his cross-bill of exceptions contends that the trial judge erred in overruling his motion to modify an order of continuance of the motion for a new trial, which had been drawn up as consented to by him (counsel), when he allegedly never consented to the continuance; also it is contended that the court erred in overruling the plaintiff's motion to dismiss the defendant's motion for a new trial; on the grounds: (1) that the motion for a new trial was signed by the trial judge after the expiration of the term in which the case was tried; (2) that no acknowledgement of service was made by the plaintiff of the motion for a new trial after it was filed, and that the plaintiff did not waive service of said motion. Both motions were overruled, and the plaintiff excepted pendente lite.

The main bill of exceptions excepts to the overruling of the defendant's (1) motion to dismiss the petition, (2) motion for nonsuit, and (3) motion for a new trial. 1. The court did not err in overruling the motion to dismiss the defendant's motion for a new trial. The motion for a new trial was sent to the attorney for the plaintiff in the court below for acknowledgment of service. The attorney struck from the form acknowledgment and waiver the following words, "time, copy and all other and further service waived." The following acknowledgment was signed: "Due and legal service of the within motion and order acknowledged. This 11th day of March, 1948." The trial judge certified by note in the cross-bill of exceptions that the trial term of the court had not adjourned at the time the bill of exceptions was signed nor on the date when it was filed. Furthermore, after the plaintiff below had made a motion to dismiss the motion for a new trial her attorney signed the approval of a brief of the evidence, in which there was an agreement that it be filed as a part of the record in the case. In connection with the certification of the cross-bill of exceptions, the judge made the following note: "During the hearing of the motion to modify the order of continuance granted August 20th, 1948, and the motion to dismiss the motion for new trial and before any order was entered thereon, J. G. B. Erwin, of counsel for movant, stated in open court that some days prior to the entering of the consent order of August 20th, 1948, continuing the hearing of the motion for new trial to October 15th, 1948, Mr. Adams, counsel for the respondent, called him over the telephone and stated that unless he was furnished with a copy of the amendment to the motion for new trial 2 or 3 days before the hearing set for August 20th, 1948, that he would not be ready for the hearing at that time; that he told Mr. Adams that Mr. Whitwell was preparing the amendment, but that he would write Mr. Whitwell and ask him to write Mr. Adams whether he could furnish him with a copy of the amendment as requested; that on the following day, he received a letter from Mr. Adams to the effect that unless he was furnished a copy of the amendment to the motion by August 13th, 1948, he would not be ready for the hearing on August 20th, as he was going on his vacation and it would require some time for mail to reach him; that he mailed this letter to Mr. Whitwell and requested Mr. Whitwell to write Mr. Adams in reply, in due course, received a copy of a letter from Mr. Whitwell to Mr. Adams advising Mr. Adams that he could not furnish him a copy of the amendment by August 13th, 1948, and, also received a copy of a letter from Mr. Adams to Mr. Whitwell advising Mr. Whitwell that he would not be ready unless he was furnished with a copy of the amendment by August 13th, 1948; that acting on this telephone conversation and these letters, he prepared and took the consent order of August 20th, 1948, continuing the hearing of the motion to October 15th, 1948.

"Mr. Erwin further stated that he sent the motion for new trial to Mr. Adams for acknowledgment of service, and in about a week later received it by mail, and seeing that Mr. Adams had acknowledged service, filed it, not noticing that Mr. Adams had hyphened out a portion of the acknowledgment of service.

"The February term, 1948, of Gordon Superior Court had not adjourned when the motion for new trial was presented and filed.

"The court further took into consideration the fact that Mr. I. C. Adams, counsel for respondent, called the court over long-distance telephone and stated that the movants in their original motion would not, he understood, have their amended motion ready for a hearing in time for him to study it before going on his vacation, and would probably ask for a continuance; that he did not ask for a continuance or wish to be in the attitude of agreeing to a continuance; but that it would suit him better if the hearing was continued until after he returned from his vacation. It was upon consideration of all the above facts that the court overruled the motion to dismiss the motion for new trial." There was an order of continuance of the hearing on the motion for a new trial, which recited that it was signed by consent of counsel. The attorney for the plaintiff below moved that the order be modified so that it would show that it was signed solely at the instance of the railroad. As we understand the issues, the motion to modify had as its purpose the removal of the order as a waiver of lack of service of the motion for a new trial, and not for the purpose of having the case sent back for the sole purpose of having the motion argued again before the trial judge. Inasmuch as it is otherwise immaterial, under the rulings above, no ruling will be made on the motion to modify the order.

2. The first ruling assigned as error is the action of the court in overruling the defendant's written motion to dismiss the petition, in the nature of a general demurrer. This motion was filed upon the call of the case for trial and after the allowance of the plaintiff's amendment setting up "that the suction of the swiftly-moving train drew the deceased into the side of said train as it was passing him at said time." As stated in the brief of counsel for the defendant, the petition as amended sought recovery upon the theory that the deceased was killed while trying to enter a camp car on a sidetrack of the defendant's main-line track by being sucked into the side of a freight train passing the several camp cars, at a speed of 60 miles per hour, in violation of a city ordinance limiting the speed of trains to 25 miles per hour, without signaling by bell or whistle the approach of the train; without the engineer maintaining a constant and vigilant lookout along the track ahead as the train approached said camp cars; without having the train under proper control; in failing to anticipate the presence of the deceased at the side of one of the camp cars in a hazardous place between the sidetrack and the main line; in placing the camp cars on its sidetrack at the place where they were located, and in such manner that cars north of the car deceased was trying to enter cut off his view of the approaching train from the north on the main-line track, because the sidetrack "curved rather sharply to the east as it connected with said main line."

The defendant contends that the case should have been dismissed on its motion in the nature of a general demurrer, under the ruling in Southern Railway Co. v. Young, 20 Ga. App. 362 (93 S.E. 51). The facts in the Young case are so far different from the facts as set out by the allegations in this case, that we do not think that the ruling therein is applicable here. In the Young case, the injured person was expecting a train, he had heard it blow and knew it was approaching, and he saw its headlight and still remained so close to the track, although there was nothing to prevent his removal a safe distance from the track, that he was hit by the train. In the instant case, it was alleged that the deceased did not know of the approaching train, that the track curved sharply 100 yards north of the camp car he was undertaking to enter, "cutting off his view of the approach of trains from the north," and that he did not see or hear any trains. Another distinction in the Young case and the case at bar is the fact that the deceased in the instant case was alleged to have been between the camp cars and the moving train (the space between the camp cars and the train being a little more than four feet), and was hemmed in, so to speak, in such a manner that he could not retreat or otherwise retire from his perilous position. Furthermore, the speed of the train in the instant case was alleged to have been 60 miles per hour, whereas the speed of the train in the Young case was first alleged as between 15 and 20 miles per hour, and by amendment as between 30 and 35 miles per hour.

We do not think that this court can say as a matter of law that no suction was probable or possible under the situation alleged in the petition, or that the deceased should necessarily have known as much about suction under such circumstances as the employees in charge of the operation of the train. The plaintiff alleged suction as a consequence resulting from the rapid speed of a train in close proximity to a string of camp cars, and we think there is a vast difference between the possibility of suction under the circumstances here alleged and the circumstances appearing in the Young case. The case of Moore v. Seaboard Airline Ry. Co., 30 Ga. App. 466 (118 S.E. 471), which is also cited and relied on by the defendant, is not in point because of its most unusual and extraordinary state of facts. It may be noted also that neither the Young case nor theMoore case holds, as a matter of common knowledge, that no suction is possible as a result of a swiftly-moving train in close proximity to a string of cars on an adjacent sidetrack. The court did not err in overruling the motion in the nature of a general demurrer to dismiss the petition.

3. Grounds 4 through 9 of the amended motion for a new trial assign error on various charges of the court which authorized the jury to find that the employee was an invitee at the time he was killed. The evidence clearly authorized the finding that he was an invitee at that time, and none of the grounds shows any material error.

4. That there is no suction toward the side of a moving train has not been scientifically established, and it was not error to refuse a request to charge that such a fact is true. Special ground 10 is without merit.

5. The court did not err in refusing to charge the following request: "I charge you that it was the duty of the defendant to maintain a vigilant lookout ahead down the track in front of his locomotive, but he was not required to be looking otherwise than ahead for any person that may have been in a place of safety clear of the sweep of the train to the side of the track." This request was inapplicable for the reason that the act of looking ahead by the engineer and fireman would have revealed one who was standing immediately adjacent to the tracks, and it would not have required a looking to the side to see him.

6. Special ground 12 complains of the refusal to charge the following request: "I charge you that the defendant contends that it was not guilty of any negligence causing or contributing proximately to the cause of the injury and death of the deceased and that the proximate cause was his own act of voluntarily stepping or falling into the side of the train as it was passing. If this hypothesis is supported by material evidence and is as consistent with the cause of the injury as that sought to be established by the plaintiff, there can be no recovery and your verdict must be in favor of the defendant." This ground is without merit for the reason that there was no evidence that the deceased voluntarily stepped or fell into the side of the train as it was passing.

7. It was not error to refuse to charge the following request: "I charge you that the construction of a railroad yard is an engineering problem in which a permanent situation is presented, and there is no rule of law which restricts railroad companies to any particular method of erecting or maintaining their tracks. An employee who is familiar with or should be familiar with such physical facts by the exercise of ordinary care assumes all ordinary risks of injury resulting therefrom, as well as the risks of injury from such situation, if any, which is obviously dangerous. In the case now before the court, I charge you that, if you find from a preponderance of the evidence that at the place where plaintiff's intestate met his death the tracks were close enough together and the physical situation was dangerous to a person located between the train and camp cars located on the side track, and said condition caused or contributed directly to the cause of the death of plaintiff's intestate, he would be held to have assumed the risk of such dangerous situation, if any." This request does not state a correct principle of law as applied to a situation where a person is standing far enough away from a train not to be hit by it unless some other force, such as suction, comes into play. A majority of the court hold that the jury, under sufficient evidence, would be authorized to find that such a force could operate to draw a man into a train where he is standing between the moving train and cars on an adjacent track. In such a situation it would be a jury question whether the railroad should anticipate the danger of one it should anticipate was so situated, and exercise ordinary care to avoid injuring him.

8. Special ground 14 complains of the refusal to give a requested charge to the effect that, if the jury found for the plaintiff, it must take into consideration the condition of the plaintiff's health as well as that of the deceased, at the time of his death, in arriving at the period of time in the future that she may have been expected to receive support from the deceased if he had lived. The refusal to give the request was not error because the plaintiff's health at the date of the death of the employee is immaterial. Her health at the time of trial would be. Furthermore, there was no evidence in the record from which the jury could find the expectancy of the plaintiff except that she was under the care of a doctor at the date of the employee's death. Atlantic Coast Line R. Co. v. McDonald, 50 Ga. App. 856 (179 S.E. 185). The refusal to give this requested charge was not error.

9. Special ground 15 complains that the verdict was excessive. This ground is meritorious. The plaintiff's action was not for the full value of the life of the deceased, but only for her interest in the life, based on his monthly contributions. The highest monthly contribution proved was $40. The evidence did not authorize a finding that it would be increased to any appreciable extent. The deceased at the time of his death was 37 years of age. The verdict rendered by the jury, for $20,000, was due to bias and prejudice or gross mistake. This amount indicates that the jury found an expectancy much greater than is ever attained in modern times or contributions much larger than authorized by the evidence. The fact that the plaintiff wrote off $10,000 from the verdict before the motion for a new trial was passed on does not have the effect of eliminating the defect in the original verdict. If any excess was given because of bias or prejudice or gross mistake, so might the whole have been given. The voluntary writing off of a part of the verdict does not obviate a reversal where the appellate court can hold that the verdict as originally rendered is so excessive as to lead the court to suspect bias or prejudice or gross mistake. SeaboardAir-Line Ry. Co. v. Randolph, 129 Ga. 796 (59 S.E. 1110), and cases cited. Neither the judge nor the plaintiff can fix the amount of a verdict in such cases.

10. As the case must be tried again the general grounds of the motion for a new trial will not be considered.

The court erred in overruling the motion for a new trial.

Pursuant to the act of the General Assembly approved March 8, 1945 (Ga. L. 1945, p. 232, Code, Ann. Supp., § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.

Judgment affirmed on the cross-bill of exceptions, andreversed on the main bill. Sutton, C. J., Gardner and Worrill,JJ., concur. Felton, J., concurs specially. MacIntyre, P. J.,concurs in all of the majority opinion except division 9, fromwhich he dissents. Townsend, J., disqualified.

ON MOTION FOR REHEARING.