Louisville & Nashville Railroad v. McCamy , 72 Ga. App. 769 ( 1945 )

1. Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous.

2. Where certain evidence is excluded over objection, but the record contains similar evidence establishing the fact which it is sought to establish by the evidence which has been excluded, such exclusion will not constitute reversible error, even if the exclusion was erroneous.

3. A statement to the jury in counsel's closing argument of the names of the parties to the cause does not constitute such an improper or prejudicial statement as to warrant the granting of a mistrial, and where the court in its discretion refuses the grant of a new trial, the judgment will not be interfered with unless it is apparent that a mistrial is essential to the preservation of the right of fair trial.

4. Where there was substantial evidence in support of the plaintiffs' allegations to authorize the finding of the jury in favor of the plaintiffs, such finding will not be interfered with by this court.

DECIDED SEPTEMBER 7, 1945. John Roy McCamy Jr., and Mariata Joyce McCamy, by next friend, Mrs. Nora McCamy, defendants in error, brought suit against Louisville Nashville Railroad Company and Atlantic Coast Line Railroad Company, lessees of Georgia Railroad Banking Company, Louisville Nashville Railroad Company, Atlanta West Point Railroad Company, and Atlanta Belt Line Railroad Company, doing business under the name of Atlanta Joint Terminals, plaintiffs in error, for damages growing out of the fatal injury to John Roy McCamy, father of the defendants in error, who was alleged to have been killed, through the joint negligence of the plaintiffs in error, on April 1, 1944, in the City of Atlanta, when the train of the plaintiffs in error struck the automobile of the deceased at a crossing on Memorial Drive, while the automobile was being driven by B. W. Whiting. The petition sets forth substantially the following allegations of negligence: The defendants were negligent, in that said locomotive approaching said public crossing was not lighted so as to warn persons about to cross said crossing of the approach of the train; in that the engineer in charge of said locomotive as it approached said crossing negligently failed to give any signal by bell, whistle, or otherwise, as was required in the exercise of ordinary care in order to warn persons about to cross the crossing of the approach of said train; in that the engineer in charge of said train negligently failed to toll the bell of said locomotive constantly in approaching said crossing, as required by law; in that the engineer and fireman in charge of said train failed to keep a constant lookout ahead along said track as they approached said crossing, to avoid injury to persons about to cross said crossing; and in that they negligently failed to stop said train when they saw or in the exercise of ordinary care should have seen the beam of the headlight of said automobile over said crossing, and when they in the exercise of ordinary care should have seen the lighted automobile approaching said crossing; in that the engineer and fireman in charge of said train negligently failed to slow down said train when they saw or should have seen said automobile on said crossing, in order to permit said automobile to complete its crossing of said tracks in safety; and in that they failed to have either a flagman at said crossing or an automatic-signal system in working order, as was required in the exercise of ordinary care under the circumstances existing at said crossing, the defendants having no signal system in operation at said crossing until said automobile was within 20 or 30 feet of said crossing, traveling at a speed of about 20 or 25 miles per hour, at which time the automatic signal system suddenly became lighted, but too late for said automobile to stop before entering on the crossing; said defendants being guilty of negligence per se, in that said automatic signal (required by an ordinance of the City of Atlanta) was insufficient to protect the public fully from the danger of approaching trains; and in that said crossing-signal system did not begin to ring until said automobile was already starting across said crossing, and defendants were negligent in failing to maintain a signal system at said time which would function in sufficient time to give a warning of approaching trains to persons about to cross said crossing; in that the defendants were negligent in operating said train at the negligent rate of speed of from 35 to 40 miles per hour over said crossing in said thickly settled industrial section, said crossing being a much-used one in the City of Atlanta; in that there was in force at said time in the City of Atlanta an ordinance that no train shall proceed across any grade crossing in the city at a greater speed than 10 miles per hour; and defendants were negligent in operating said train at a speed in excess of 10 miles per hour in violation of said ordinance. The plaintiffs in error filed their answers to the petition, and the case came on for trial. After the introduction of all the evidence and the charge of the court to the jury, the jury returned a verdict in favor of the defendants in error for $25,000 and judgment was entered thereon. The plaintiffs in error moved for a new trial upon general and special grounds, the motion was overruled, and the plaintiffs in error except to that ruling. 1. Ground 1 of the amended motion for a new trial contends that the "following material evidence was illegally admitted by the court to the jury over the objection of movants, to wit: Plaintiffs' witness, B. W. Whiting, was propounded the following questions and made the following answers on direct examination. . . 'Q. Now, how far from the crossing of these four tracks were you at the time [you] heard the bell, when you took your foot off the accelerator and started to stop? A. I was approximately 23 feet away from the crossing. Q. Did you have time at that time, going at 20 or 25 miles per hour, to stop before you got to the crossing? A. No, sir.' Counsel for defendants objected to the testimony upon the ground that the same called for a conclusion of the witness. The court overruled the objection and directed the examination to proceed, whereupon . . [counsel for plaintiffs] propounded the following questions to the same witness: ``Q. Did you have time to stop? A. No, sir, I did not have time to stop. Q. Did you have sufficient distance within which to stop? A. No, sir.' Counsel for the defendants made the following objection: ``I object to that for the same reason — because it is leading and suggestive and calls for a conclusion of the witness.' The court overruled the objection and permitted the testimony to remain in evidence." Whether or not it was error to admit this opinionative evidence of B. W. Whiting as to his ability to stop the automobile before reaching the crossing at which the collision occurred, we need not decide, because its admission in no way affected the substantial rights of the parties since there appears in the record other testimony to the same effect, which was admitted without objection by counsel for the plaintiffs in error, and upon which the jury could have reached the same conclusion; and, if its admission were error, the plaintiffs in error will be held, upon appeal, to have waived their right to object to its admission, by their failure to object to the following opinionative evidence to the same effect. At page 36 of the record, Whiting stated: "Going down Memorial Drive, I was running around 30 or 35 miles an hour until right before I got to the first crossing, by which I mean the side-track crossing. When I got there, I slowed down to about 25 miles an hour as I went across the spur track. I was in front of the A. W. P. depot, and I heard a bell ringing. I started to put on brakes, and I saw that I would stop directly on the crossing, so I proceeded across, which was the only thing I could do." Again, at page 38 of the record: "I was coming down on the right-hand side of the street. I slowed down to between 20 and 25 miles an hour when I got to this point, the spur track. When I got to the center of the buildings — a signal [is] there with a bell on it — I heard the bell ring; and, when I did, I started to put on brakes, and at that time I was already on the crossing, and I looked first one way then the other to see if there was a train coming, and I did not see one, and I proceeded on across the crossing. I could recall where I was that night, from that building, and it was 23 feet from here (indicating) to the crossing." The witness Whiting, expressed his opinion of his inability to stop before reaching the crossing, at another point in the record, which need not be quoted here, however, at length. The admission of this opinionative evidence, under the facts of the instant case, was not reversible error. See Ga. Code Ann., § 70-203, catchword "same evidence," for an overwhelming number of decisions in support of this holding.

2. In ground 2 of the amended motion for a new trial, the plaintiffs in error contend that the court erred "because the following material evidence offered by movants was illegally withheld by the court from the jury, against the demand of movants: H. N. Smith, a witness for the defendants and their engineer, was being examined on direct examination by counsel for defendants. ``Q. You saw him when you were in about 25 feet of the crossing, and he looked as if he was going to stop? A. Yes, sir. Q. And he changed his mind apparently? A. It seemed he thought he had time to beat me across the crossing; that is the way it looked.'" Assuming, for the sake of argument, that Smith's statement was admissible and was not prejudicial, in that it would tend to leave the impression that Whiting's action in proceeding across the crossing was daredevil and sportive, and that he was recklessly racing the train instead of proceeding across the crossing in an effort to protect himself from the impending collision — the exclusion of this evidence was harmless, in that there was other uncontradicted proof of the fact that Whiting had started to stop at the crossing, but had in effect changed his mind and proceeded across, which was the fact that counsel for the plaintiffs in error sought to elicit from the witness, Smith. Whiting makes this admission himself: "I was going between 20 and 25 miles an hour when I first heard the bell. I must have continued at the same speed at the time of the collision. I just taken my foot off the accelerator, but I did not put on brakes. I started to touch the brakes, and then I put it back on [the accelerator] and continued across." It was unnecessary, therefore, for counsel to prove this fact again by one of the witnesses for the defense; the plaintiffs in error had full benefit of this fact, and we are of the opinion that the plaintiffs in error were not harmed by the exclusion of this testimony. General Chemical Co. v. Porter, 68 Ga. App. 780 (24 S.E.2d 140); Cliett v. Metropolitan Insurance Co.,195 Ga. 257 (24 S.E.2d 59).

3. It is the contention of ground 3 of the amended motion for a new trial that " the court erred in failing to grant a mistrial on motion of movants on account of certain improper remarks made by one of the counsel for the plaintiffs, before the jury and in the presence of the court and the jury. Said remarks were made during the argument of opposing counsel, and said motion was made by the movants at the time the remarks complained of were made and before the verdict of the jury was rendered, and said remarks were not referable to any evidence introduced upon the trial of the case. Said remarks were as follows: ``I call your attention, gentlemen of the jury, to the fact that this case is not brought by Mr. Whiting, but is brought by these two children of John Roy McCamy. I also call your attention to the fact, gentlemen of the jury, you will notice that there are several railroad companies that are being sued in this case and they are all defendants named in the case and that there is an arrangement between the defendants for their operation.'" At this point in his argument to the jury, counsel for the defendants in error was interrupted by counsel for the plaintiffs in error and a motion was made for a mistrial. We are aware of no rule of law in this State which prohibits counsel in their argument to the jury from stating the names of the plaintiff and the defendant in the case before the jury, nor are we able to comprehend in what manner such a statement of the names of the parties could be said to have prejudiced the rights of either party. Counsel for the plaintiffs in error did not allow counsel for the defendants in error to proceed in his argument beyond this simple statement of the names of the parties, before he moved for a mistrial, and from this statement alone we can find no cause to warrant the granting of a new trial. It will be observed from the record that in his argument to the jury counsel for the plaintiffs in error had stated that the case should be tried as though Whiting were the plaintiff, since its defense was based upon the doctrine of attributable or imputable negligence. It is obvious, therefore, that this statement by counsel for the plaintiffs in error was provocative of the statement by counsel for the defendants in error, and it was natural that he should have made such a reply; nor did the statement complained of deprive the plaintiffs in error of their defense of imputable negligence; or, even assuming for the sake of argument that it tended to do so, this tendency was admirably cured by the charge of the court on the question of attributable or imputable negligence. The Supreme Court, inManchester v. State, 171 Ga. 121 (155 S.E. 11), held that the granting of a mistrial "is largely within the discretion of the court; and unless it is apparent that a mistrial was essential to preservation of the right of fair trial, the discretion will not be interfered with." We are of the opinion that the plaintiffs in error have not been deprived of the right of fair trial in the instant case through the remarks of counsel for the defendants in error in stating the names of the parties to the case, and we find no error in the refusal to grant a mistrial.

4. The general grounds of the motion for a new trial set forth no error requiring a reversal of the judgment. There is substantial evidence in support of some of the defendants in error's allegations of negligence, and uncontradicted evidence in support of the allegation as to the decedent earning from $6000 to $10,000 per year at the time of his death, and we are unable to say as a matter of law that the verdict is contrary to the evidence, or without evidence to support it, or in any manner excessive.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.