Central of Georgia Railway Co. v. White , 1910 Ga. LEXIS 23 ( 1910 )

Lumpkin, J.

Mrs. George 0. White brought suit against the Central of Georgia Kailway Company for a personal injury. Her husband also brought suit against the defendant on account of loss of services of his wife. The cases were tried together. The main contentions of the plaintiffs were, in brief, as follows: Mrs. White had spent the day visiting relatives in the country. She intended to return home by train in the evening, and expected her husband to join her at another station on the line of the railroad. About dark she repaired to a flag-station on the line of the defendant’s' railroad, where, according to the known usage of the defendant, passenger-tr-ains were stopped when signaled. As the train approached the station, and as soon as it came near enough for the engineer and other servants in charge of it to see signals, the brother of Mrs. White, who accompanied her, gave the usual signal with a handkerchief which was waved in plain view, so that the engineer saw it and recognized its purpose, but disregarded it, and refused to stop the train, leaving Mrs. White at the station. It was alleged that there was no shelter at that place, and she was compelled to travel several miles to another town in search of a place to spend the night; but the evidence on this subject did not measure up fullv to the allegations. By reason of the cold and ex-posnre she was made sick, suffered bodily discomfort, and lost time from her household duties.

The defendant denied any negligence or violation of duty; and contended that if Mrs. White was made sick from exposure, it was not the proximate result of any such breach of duty; but that she voluntarily drove to a town some miles away, in order to communicate with her husband, although it was not shown that she did so after arriving there. The jury found in favor of the wife $500, and in favor of the husband $100. In each case the defendant moved for'a new trial, which was denied and it excepted.

If it was the duty of the engineer to stop the train at the flag-station, upon the proper signal being giyen, and he carelessly or intentionally failed to do so, leaving the plaintiff, Mrs. White, standing beside the track,- exposed to the cold of a winter evening, nevertheless this did not free the intended passenger from using ordinary care and diligence to lessen the damage which might result, as far as practicable. This was not such a'tort as is described in section 3802 of the Civil Code, by the use of the words “positive and continuous torts,” which would relieve the injured party from the duty of using ordinary care and diligence. A person who is left at a flag-station because the train fails to stop upon the giving of the customary signal, whether the engineer sees it or not, can not stand in the cold all night, or remain in a drenching rain, -or be guilty of like conduct, and claim to be free from any duty of using ordinary care or diligence to protect himself. Brown v. Georgia, Carolina & Northern Ry. Co., 119 Ga. 88 (46 S. E. 71); Georgia, Carolina & Northern Ry. Co. v. Brown, 120 Ga. 380 (47 S. E. 942). There was evidence from which the jury might have inferred that the injury to Mrs. White was not the proximate result of any breach of duty on the part of the defendant; and the court should have given a charge on that subject, upon request. Some of the requests to charge were properly refused. They involved an intimation from the court to the jury as to what ordinary care and diligence on the part of Mrs. White required her to do upon being left by the train, and that going to a neighboring town, if there was' no actual necessity for it, was negligence. Under the evidence, this was a matter for the jury and not for the court to determine, in the light of the circumstances and facts of the particular case.

A charge was invoked to the effect that the testimony of a party who offers himself as .a witness in his own behalf should be construed most strongly against such party, when it is vague or equivocal. Another request elaborated this principle by adding that in no event should any weight be given to statements, which, when considered in connection with admitted facts, amount to no - more than a bare conclusion of the witness, unwarranted by and inconsistent with such facts. We do not think that the evidence warranted such charges. Besides, in this State the judge is prohibited from expressing any opinion on the weight of the evidence. That is a’ question left to the jury. Expressions of the character involved in these requests have been used by judges of courts of review in discussing the facts of particular cases, or rulings on motions for nonsuit, but they have not been established as substantive law to be given in charge to juries.

On account of the errors in refusing to charge, as indicated above, a new trial must be granted.

Judgment reversed.

All the Justices concur.