Callaway v. Fischer , 69 Ga. App. 251 ( 1943 )

The verdict being authorized by the evidence, and no error of law appearing, the court did not err in overruling the defendant's motion for new trial.

Felton, J., dissents.

DECIDED MARCH 19, 1943. REHEARING DENIED MARCH 30, 1943. Mrs. A. H. Fischer sued the trustee of the Central of Georgia Railway Company for damages from personal injuries alleged to have been caused by the defendant's negligence in operating one of its locomotives at a public crossing in the City of Griffin, Georgia, and colliding with the automobile in which plaintiff was riding with her husband and son. The specifications of negligence were as follows: "(1) In operating a train at North Hill Street crossing at a greater rate of speed than fifteen miles per hour, in violation of an ordinance of the City of Griffin. (2) In not keeping and maintaining a flagman at said crossing to direct the traffic at the time the automobile in which petitioner was riding was struck by defendant's train, in violation of an ordinance of the City of Griffin. (3) In erecting or permitting to be erected the large brick building on its right of way adjacent to said crossing, that obstructs the view of those approaching said crossing from the south, so that those thus approaching can not see approaching trains from the direction of Macon. (4) The defendant was negligent in not ringing the bell on the locomotive of said Flamingo train as it approached said crossing. (5) The defendant was negligent in that it permitted and did place box cars on the track adjacent to said Newton Coal and Lumber Company building and immediately next to said crossing, thus obstructing the view of those approaching said crossing from the south to such an extent that they could not see down the track toward the east and catch the view of a train approaching from the east. (6) In failing to check the speed of said train by the application of brakes or otherwise as in the exercise of ordinary care should have been done." The petition alleged that the plaintiff was in the exercise of ordinary care and diligence. The defendant's answer denied the material allegations of the petition, including the allegation that the plaintiff exercised ordinary care, and alleged that the plaintiff by the exercise of ordinary care could have avoided the consequences of the alleged negligence of the defendant. The jury found for the plaintiff $7500. The defendant excepted to the overruling of his motion for new trial. 1. The first special ground of the motion complains that the amount of the verdict was excessive. The evidence shows that the plaintiff was seriously injured when she was thrown from the automobile upon the pavement. Her head was severely injured, two ribs were broken, her left arm was broken, her right leg was injured, and she was confined to the hospital and her bed for about two months. No question is raised in the record as to the admission or rejection of any evidence that would have prejudiced the minds of the jury, nor is anything pointed out in the record to indicate that the jury was in any way unduly or improperly influenced to render the verdict. "The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias." Code, § 105-2015. The amount of damages was fixed by the jury after hearing the evidence, and the verdict was approved by the judge; and from the record here presented it can not be held by this court that the amount was so excessive as to justify the inference of gross mistake or undue bias. Langran v. Hodges,60 Ga. App. 567 (4) (4 S.E.2d 489).

2. The following charge was excepted to: "Now, gentlemen, the plaintiff sues for $15,000. You can not give a verdict for more than the plaintiff sues for, but you can give a verdict in favor of the plaintiff, as I have already instructed you, for any amount you see fit and proper, under the evidence and rules of law I have given you in charge, less than $15,000. You could not return a verdict for the plaintiff in any event for more than she sues for in her petition, which is $15,000, if you find she is entitled to anything at all." The errors assigned are: "(a) Because said charge was an expression or intimation by the judge as to what had or had not been proved. (b) Because said charge was calculated to confuse and mislead the jury, and erroneously conveyed to the jury an intimation that a finding that the plaintiff's damages amounted to $15,000 was justified by the evidence, and would be approved by the court. (c) Because the court failed to explain that the sum claimed, $15,000, should not be taken as a criterion to act upon, but only as a limit beyond which the jury could not go. And said charge was calculated to impress the jury that the $15,000 might be taken as a criterion to act upon. (d) Because the said sum of $15,000 was grossly excessive, and it was error for the court to instruct the jury that they were authorized to award that amount." The charge was not reversible error for any reason assigned. The verdict was for $7500. If the charge did express or intimate an opinion that damages in excess of $7500 had been proved and were authorized, the jury did not act on the instruction as so construed, and it was not harmful.

3. Ground 3 complains that the court erred in failing to give to the jury the following requested charge: "While the negligence of the driver of an automobile is not imputable to a guest in the automobile, I charge you that a guest riding in an automobile must act as a person of ordinary prudence where obvious danger arises from the acts of the driver." The judge substantially gave this principle of law in charge to the jury several times in his general charge. He charged the jury with respect to this principle as follows: "The degree of care and diligence required of the plaintiff is ordinary care and diligence. The degree of care and diligence of the defendant is ordinary care and diligence. I charge you that if you should find, under the evidence and rules of law I give you in charge, that the defendant was negligent, and that the plaintiff could have avoided the consequences of defendant's negligence after it was apparent or should reasonably have been apprehended by her by the exercise of ordinary care and diligence, the plaintiff would not be entitled to a verdict against the defendant. I further charge you, gentlemen of the jury, that if you should determine, from a consideration of the evidence under the rules of law I give you in charge, that the defendant was negligent in a degree amounting to a failure to exercise ordinary care and diligence, and that as a result of such negligence of the defendant the plaintiff sustained damages, and that the plaintiff could not have avoided the consequences of such negligence of the defendant by the exercise of ordinary care and diligence after the same was apparent or should have been apparent to her, I charge you that the plaintiff would be entitled to a verdict at your hands. Now, gentlemen of the jury, the defendant contends that these alleged injuries to the plaintiff in this case were brought about by the sole and proximate negligence of the plaintiff's husband. In that connection I charge you, gentlemen of the jury, that while the negligence of the driver of an automobile may not be imputed to a guest riding in the automobile, but if you find from the evidence that the negligence of the driver, if he was negligent, was the sole proximate cause of the injury to the guest, then in that event the guest would not be entitled to recover from a third person."

Much has been written on this subject in the decisions of the Supreme Court and of this court, and it has generally been held error for the court to refuse to give a pertinent legal charge in the language requested, unless the judge substantially gave the requested charge in his general charge; but where he did so, it has been deemed and held sufficient. As was said in Southern Ry.Co. v. Reynolds, 126 Ga. 657 (3) (55 S.E. 1039), "The court is not bound to charge in the exact language of a request; and a new trial will not be granted because of a refusal to charge as requested, when the charge given substantially covers the request." The allegation in paragraph 20 of the petition, that the plaintiff "was in the exercise of ordinary care and diligence," which was denied by the defendant, is not necessarily an allegation of due care and diligence on the part of the plaintiff before the negligence of the defendant was apparent, or in the exercise of ordinary care should become apparent to the plaintiff. The defendant expressly alleges in his plea that the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the alleged negligence of the defendant. While the plaintiff testified that while traveling with the driver of the car, who was her husband, she always maintained a lookout, and that on this occasion she looked in one direction and did not see a train, and looked in another direction and then saw the approaching train, and that she did not hear or see the train until the moment before it hit the automobile in which she was riding, it appears that the only negligence that could in any way be charged to the plaintiff, if any, was that she was negligent in failing to avoid the consequences of any negligence of the defendant. Under the record, no reversible error is shown in this ground of the motion.

4. Ground 4 alleges that "the court nowhere charged the jury that no person shall recover damages from a railroad company for injury to himself where the same is done by his consent or is caused by his own negligence," and contends that the failure to so charge was error. The judge plainly charged that the plaintiff could not recover except for the alleged acts of negligence on the part of the defendant; that the burden was on her to prove such negligence; and that she could not recover if she could have avoided the consequences of defendant's negligence by the exercise of ordinary care on her part. He also charged that if the negligence of the driver of the automobile (if he was negligent) in which the plaintiff was riding, was the sole proximate cause of the injury to the plaintiff, then the plaintiff would not be entitled to recover against the railroad company. In the absence of a special request, we think the general charge was sufficient with respect to the complaint raised in ground 4.

5. It is not error for the court, without a request, to fail to charge on comparative negligence, where the answer of the defendant does not set up such defense. Western Atlantic R.Co. v. Jarrett, 22 Ga. App. 313 (96 S.E. 17); Southern Ry.Co. v. Weatherby, 20 Ga. App. 399 (93 S.E. 31).

6. The court did not err in charging the jury, as contended by the plaintiff in error in grounds 6, 7, 8, and 9, or in not giving the requested charge as complained of in ground 10.

7. It is contended in ground 11 that the judge erred in charging the jury on the provisions of the law with reference to determining where the preponderance of evidence lies, because he failed to instruct the jury that in determining that issue they may consider the witnesses' "personal credibility so far as the same may legitimately appear from the trial." In charging the Code section 38-107, it is not always reversible error for the judge to omit to give some provision thereof. It is the better practice to charge the section in its entirety; but the failure to charge some provision of that section may or may not be error, depending on the facts of the case. No such harmful error against the plaintiff in error is shown as to require a reversal. Byrd v. Grace, 43 Ga. App. 255 (3) (158 S.E. 467); Georgia PowerCo. v. Burger, 63 Ga. App. 784 (2) (11 S.E.2d 834);Western Atlantic Railroad v. Henderson, 6 Ga. App. 385 (65 S.E. 48).

The verdict being authorized by the evidence, and no error of law appearing, the court did not err in overruling the motion for new trial.

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