Georgia Railroad & Banking Co. v. Hicks , 95 Ga. 301 ( 1895 )

Atkinson, Justice.

The facts upon which the questions in this case arise are so fully and accurately stated in the official report, that we do not deem it necessary to restate them here.

1. The principle declared in the first head-note has been so frequently and so strongly stated by this court heretofore, that it is unnecessary to. attempt a further elaboration of the reasons which justify its recognition. It might be well for the .profession to recognize that with reference to some matters at least they are so well established as, upon the doctrine of stare decisis, to be beyond further controversy.

2. There was no possible view from which in this case section 3033 of the code could have had the slightest application or the slightest relevancy. Its. provisions are utterly foreign to this kind of a controversy, and state a rule of law which imposes the burden of proof exactly where the true law says it ought not to be. In a case where an employee of a railroad company brings an action for damages against his employer, the burden of proof is upon the plaintiff, in addition to the injury, to show one of two things: either that he was himself entirely free from fault, or that he was injured by the negligence of a coemployee. Thus the burden is imposed upon the plaintiff to prove his case; but section 3033 of the code, which deals with injuries not done to but done by the employees of the company, raises a presumption of negligence against the company upon the proof of injury alone. So that, whatéver may have been the charge of the court thereafter, and even though the correct rule may have been thereafter stated, yet the effect of giving in charge section 3033 of the code to the jury was to confuse the jury by giving to them two rules directly in conflict the one with the other, both of which were to be employed by them in determining what their verdict should be. Under such a condition it would be impossible for them to regard the instructions of the court, and at the same time render an intelligent verdict.

3. The court charged the jury that the plaintiff" was not bound to show how the accident happened, provided he showed it was without fault on his part, and then added: “If the road was unable to show how it happened, then the presumption is still against the company.” We do not think this is a correct rule by which to determine the liability of the company. When the plaintiff shows that the injury was inflicted through the negligence of a fellow-servant engaged in and about the common employment, and without fault upon his part, the law imposes then upon the company only the duty of showing that its servants exercised ordinary and reasonable care. It vindicates its conduct by submitting evidence satisfying the jury that this is true. Yet this charge of the court instructs the jury that before the company would be excused it must show how the injury occurred. No such duty is imposed by law, none such should be required by the court; and the charge was erroneous.

4. We think the objection to the introduction of expert testimony, as stated in the last ground of the motion for a new trial, was well founded; and the opinions of the alleged expert touching the particular matters concerning which he was called to testify, should have been excluded by the court. The evidence showed that one employee of the company was assisting another in holding a long piece of iron pipe against the ceiling overhead. The witness was asked, “What would be the effect of sixteen feet of pipe held at one end on a stick, if one man let go; what would be the result to the man on the ladder, if he had the pipe on his shoulder as described?” He was further asked, what in his opinion caused the pipe to fall. We do not think these matters involve any of the mysteries of any particular science, trade or craft. The plumber was doubtless an expert touching matters involved in his particular trade, but these matters, concerning which an expression of opinion from him was then invoked, though bearing some slight relation to the plumber’s trade, are simply the ordinary happenings and events of life, concerning which any man of reasonable intelligence from his own observation would be able to speak with as much precision as the most expert plumber. Verdicts should not ordinarily be founded upon the opinions of witnesses, and to authorize their admission the court should be well satisfied that the circumstances concerning which they are called to testify relate to matters of opinion and not to matters of fact. Judgment reversed.