Western & Atlantic Railroad v. Bennett , 47 Ga. App. 629 ( 1933 )

Stephens, J.,

dissenting. I agree to all but paragraph 2, and from this I dissent. Where the court, immediately after charging the jury that the law requires the engineer of a railroad-train, when arriving at tíre blow-post required to be erected at a designated distance from a crossing, to blow the whistle in a described manner, and to maintain a constant and vigilant lookout along the track ahead, and otherwise to exercise due care in approaching the crossing to avoid injury to any person who might be on the crossing, and that if the jury should find that the agents or servants of the defendant in charge of the train being operated over the crossing failed to comply with these requirements, the defendant was guilty of negligence per se, and negligence as a matter of law, a charge immediately following, that if the jury should find that the plaintiff’s husband was killed by the operation of the defendant’s, train at the crossing, and that if the defendant, through its agents in charge of the train, failed to blow the whistle at the time and in the manner required, or failed to keep and maintain a constant and vigilant lookout ahead, and failed to otherwise exercise due care in approaching the crossing in order to avoid injury to a person who might be on the crossing, the plaintiff would be entitled to recover unless barred by some other rule of law given in charge in the case, is error calculated to influence the jury, in that it instructs the jury that the plaintiff can recover where the defendant is guilty of the negligence indicated, which is negligence per se, or negligence as a matter of law, irrespective of whether such negligence was the proximate cause of the homicide or whether the plaintiff’s husband himself was guilty of negligence proximately .causing his death. The court, in this excerpt from the charge, told the jury that if the acts of the defendant constituted negligence per se, that is negligence as a matter of law, the plaintiff could recover. This error is not removed or rendered harmless because the court elsewhere in the charge may have instructed the jury tha[ before the plaintiff would be entitled to recover, it must appear that the negligence of the defendant proximately caused the death of the plaintiff’s husband. “The jury can not be expected to select one part of a charge to the exclusion of another, nor to decide between conflicts therein, nor to determine whether one part cures a previous error, without having their attention specially called thereto, and being instructed accordingly.” Morrison v. Dickey, 119 Ga. 698 (2) (46 S. E. 863). The court nowhere instructed the jury that before the plaintiff could recover on negligence per se, or negligence as a matter of law, such negligence must have proximately caused the death of the plaintiff’s husband, and nowhere instructed the jury to disregard the erroneous charge referred to.

Since it does not appear conclusively and as a matter of law from the evidence that the alleged negligence of the defendant in operating its train over the crossing, -without blowing the whistle and without keeping a lookout ahead and without otherwise exercising due care, was the proximate cause of the homicide, this error in the charge was harmful to the defendant and should require the grant of a new trial.