Pollard v. Gammon , 63 Ga. App. 852 ( 1940 )

The evidence authorized the verdict for the plaintiff.

No error appears in the charge of the court, or in the failure of the court to charge as requested.

The verdict was not excessive.

DECIDED DECEMBER 5, 1940. Richard Gammon filed suit against H. D. Pollard as receiver of the Central of Georgia Railway Company, a common carrier engaged in interstate commerce, to recover damages on account of personal injuries, consisting of broken bones and permanent impairment to his left arm and leg, thereby causing a permanent decrease in the plaintiff's earning capacity, which he claims were sustained by him as the result of negligence of the defendant. The plaintiff alleged, that he sustained such injuries while a freight-train of the defendant, on which the plaintiff was employed as a flagman, was engaged in switching operations in Rome, Georgia; that the defendant was negligent in that the provisions of the Federal safety-appliance act were violated when the defendant failed to have both the end car of the train and the car which the train crew were seeking to couple onto the train equipped with couplers which would automatically couple by impact, and was negligent in that the couplers on these cars failed to couple; that the defendant was negligent in that the box-car sought to be coupled onto the train was shoved loose from the train and up the track to make the impact, instead of being pushed without disconnecting the car before the impact with the train; that the defendant was negligent in that the train was being backed up an incline at a speed of from ten to twelve miles an hour, while the car which had been kicked off to couple automatically on impact with the remainder of the train, and which had failed to so couple, was rolling down the incline on the same track and in the opposite direction; and that the defendant was negligent in bringing about the collision by causing two box-cars to move, at the speeds alleged, in opposite directions on the same track at the same time.

The defendant denied liability. He alleged that the plaintiff was injured by reason of his failure to exercise due care for his own safety and that he assumed the risks incident to his employment as a flagman, which included climbing upon freight-cars after they had been "kicked back" by the engine to couple automatically with standing box-cars, in order to apply the hand brakes on the car when it should fail to automatically couple on impact.

On the trial there was evidence on behalf of the plaintiff, to the effect that on the morning of November 16, 1938, he was engaged in the performance of his duties with the defendant as a flagman on a freight-train running from Chattanooga, Tennessee, to Rome, Georgia; that at one forty-five a. m. as the train neared the Broad Street crossing in Rome, it stopped to do some switching; that the engine and six cars were detached from the main portion of the train which remained on the main-line track; that the engine pulled these cars south and then backed north onto a sidetrack to the east of the main line; that a box-car was pulled therefrom onto the main line for the purpose of being connected with the end of the train standing on the main line; that the plaintiff mounted this car for the purpose of aiding in the coupling thereof if necessary, and applying the hand brakes thereon if the car did not automatically couple on impact with the remainder of the train; that this was a part of the plaintiff's duty as a flagman; that the track from the point where the train was standing on the main line sloped southward at a gradual grade; that from the point of the junction between the switch to the sidetrack, where the engine picked up the box-car, and the main line, was a gradual incline; that the brakeman of the train was on the west side of the track near this switch point and in view of the engineer; that the conductor was likewise on the west side of the track and near the rear of the standing train; that by reason thereof it was necessary that signals be conveyed to the engineer, and this was the reason the brakeman and conductor were so stationed; that the train was standing on the main-line track with the brakes on; that the conductor gave the signal for the end car of the switching train to be "kicked" back, that is, cut loose suddenly while the engine was in motion and caused to roll up against the standing train in order to be coupled automatically with the standing train by the impact; that this signal was transmitted to the engineer, and he complied with it and "kicked" the car; that the automatic couplers on the end car of the standing train and on the end of the car being "kicked" towards the standing train were standing open; that such car came together with the standing train with sufficient force to couple automatically by the impact; that such automatic coupling failed to result from the impact, and the car being switched and on which the plaintiff was riding began to roll gradually south down the incline of the main track; that the switchman had in the meantime turned the switch for the sidetrack, and the train was being backed; that the switchman on signal from the conductor threw the switch so that the backing train would proceed along the main line toward the car with the plaintiff on it which was rolling towards the backing train; that this was done to keep the rolling car from "sideswiping" the backing train; that the plaintiff, who was on top of the rolling car which had failed to automatically couple, hastened to the end of the car where the hand brake was located, and began to turn on the hand brake so as to stop the car, and had almost succeeded in stopping the car when it collided with the train which had been backed, knocking the plaintiff therefrom and injuring him.

The evidence was in conflict as to whether the engineer received a signal to back the locomotive and cars onto the main line after "kicking" the box-car on which the plaintiff was riding. The evidence was undisputed that the locomotive and cars attached, with or without a signal so to do, were being backed by the engineer from the switching point onto the main line and in the direction of the remainder of the train, and at a time when the box-car, which had been "kicked" to couple automatically by impact, had failed to automatically couple on impact with the rest of the train, and was rolling "loose" down the incline in the direction of the backing locomotive and cars.

There was evidence that it was an ordinary method in switching cars to "kick" a car so as to effect a coupling by impact, but that the "shoving method where it does not disconnect until after it couples is possibly the safest method.' Also, it appears from the evidence that the night was dark and foggy, and that the engineer for this reason and because of the watchman's house could not see the end of the train on the main line, and it does not appear that there was a trainman with a lantern on the end of the backing engine and cars. The evidence was conflicting as to whether the engine and cars had come to a stop at the time of the collision with the rolling box-car. The defendant's brakeman, J. W. Flannigan, testified that while he had not given the engineer "any signal to back up," the engineer "continued to move until the two cars come together; both of them were moving at the time they hit." The plaintiff testified: "I had not stopped that car before the impact occurred; it was still rolling," and "the six cars attached to the engine were moving back seven to ten miles per hour." The plaintiff also testified that, when the cars failed to couple on impact and the car on which he was riding began to roll down the incline, he immediately went to where the hand brake was and "turned it just as fast as I could." The conductor of the defendant's train testified: "When the engineer got down there south of Broad Street I didn't give a signal to back up," and "I didn't see anybody give him a signal. I didn't see the brakeman give him any signal and I didn't give him any; but the engine did back up, pushing the six cars up the track in the opposite direction and towards the loose car, coming back meeting it, and Mr. Gammon was doing all he could, turning that wheel as fast as he could to stop it," and "immediately after the cars didn't couple with the train . . he went as fast as he could to the brakes and operated the brakes as fast as he could to stop the car." The conductor also testified: "An engineer is not supposed to move under circumstances like that except on signal from some other member of the train crew."

There was evidence that if automatic couplers are in proper condition and are open and in position to couple, and the attempt to couple is made at proper speed, and the proper impact between the cars is made, the coupler will couple automatically nearly every time, but that sometimes it will even then fail to do so. There was evidence from which a jury could infer that if either the knuckle or the guard arm of such coupler is worn off a maximum of "five and five-sixteenths" the coupler is completely out of order. While there was evidence that the car from which the plaintiff was precipitated to the ground was afterwards "coupled into" the train and taken to Cedartown, and from there to Columbus, Georgia, it does not appear whether this coupling was automatic by impact or whether the car was coupled into the train by a manual coupling. The conductor testified: "After Mr. Gammon was injured I coupled that car into my train and took it on to Cedartown," and "I had no trouble coupling it the next time." As to an inspection of the car in question before the occasion when it failed to couple automatically on impact and the plaintiff was injured, J. S. Mayes, a car inspector of the defendant, testified that on November 15, 1938, in Rome, Georgia, he inspected the car and "examined the couplers on it, they were in good condition;" that he pulled the lever "to see if couplers and knuckles work properly," but that he "didn't make any measurements or anything of that kind," and that he did not "know whether the maximum of wear between the knuckle and guard arm had been reached or not."

As to the inspection of the cars after the accident, L. A. Wells, car inspector of the defendant at Columbus, testified: "I remember the occasion when Mr. Gammon is alleged to have been hurt in Rome last year. I was given information as to the particular car which he fell from. . . My duties are to supervise inspection and inspect . . freight-cars. I remember the day I examined this car, November 16, 1938. The message said that was the date Mr. Gammon was hurt that morning. I made a close inspection of it. I inspected the couplers on both ends. There wasn't anything wrong with them. I examined those cars in the Columbus yard. When those cars came in that car was coupled with another car. I remember the car on the west end, that is north, as it went through Rome going south, that would be the way it would stand. I examined the coupler on that car then. There wasn't anything wrong with that. . . Those couplers on that car and the car that was coupled to it is known as automatic couplers. They don't always couple on impact. . . I had the switch engine come in and cut the cars apart, and I pulled the lift lever, throwing the knuckles open and closing them immediately and a half-dozen or more times each end with both cars. . . I also checked for the proper height from the top of the rails. My recollection is they were around thirty-three inches. I did not make any records of that; I am just going on my recollection. . . I did not make any other examination of the couplers. If a coupler is worn to such an extent that there is an improper distance between the knuckle and guard iron it may be out of order; there is a minimum and maximum dimensions in the measurements. I don't know what the dimensions of this particular car between the guard and knuckle iron was."

E. C. Usher, an employee in the car repair shops of the defendant at Columbus, testified that he worked with car inspector Wells, and that on November 16, 1938, "we examined those couplers on both ends of those cars," and "there was no defect at all in them." This witness further testified that "as to the wear limit between the knuckle of a coupler and the guard arm, if the maximum five and five-sixteenths is reached it kills the knuckle, and new parts have to be applied in order to bring it back to where it will take that catch, within five and five-sixteenths;" that "that means if they catch that wide or wider, it is out of order," and that "I didn't make that examination of those couplers on this one, that is, on neither one of them."

The plaintiff testified that at the time of his injury he was thirty-six years of age; that prior thereto he earned as a flagman for the defendant from $200 to $230 a month; that since that time he has been on account of such injury unable to perform the work of a flagman or any kind of work requiring physical exertion; that since his injury he had worked temporarily with the Railroad Retirement Board, a governmental agency, at $150 a month, but that this work expired on October 31, 1939, and that he had no other work "in sight." The life expectancy of the plaintiff, according to the mortality tables, was 30.32 years. There was evidence that the plaintiff's ribs were broken, that his back was injured, that his left arm and wrist were broken, that his left leg and knee were injured, and that such injuries have permanently disabled him. Also there was evidence that the plaintiff on account of such injuries was compelled to undergo hospital treatment and to receive medical attention and treatment for a considerable time thereafter, during which time he was totally disabled, and that he suffered and still suffers "considerable" pain from the injuries. The jury were authorized to find that the plaintiff's left arm was permanently injured and that his use thereof was permanently impaired, thus permanently decreasing the earning capacity of the plaintiff.

The jury returned a verdict in favor of the plaintiff for $6000. The defendant moved for a new trial on the general grounds, and by amendment added several special grounds. The judge overruled the motion, and the defendant excepted. Irrespective of whether the evidence is sufficient to authorize a finding that the railroad company had, in respect to an alleged defective coupler, been guilty of a failure to comply with the Federal safety-appliance act, and irrespective of whether the evidence authorized a finding that the defendant had failed to comply with the requirements thereof, the evidence authorized a finding for the plaintiff upon other alleged grounds of negligence.

It is contended by the defendant that the plaintiff was on the car, which had been kicked back and which had failed to couple, in anticipation of the car's not coupling, and for the purpose of taking care of the car in the event it failed to couple on impact. It was alleged by the plaintiff that it was a dark night and that the defendant was negligent in kicking the car upgrade for the purpose of making a coupling with the stationary portion of the train. The jury could have inferred that the plaintiff's injuries, which resulted from his being thrown from the car as a result of its collision with the other part of the train, were the proximate result of the negligence of the defendant in kicking the car upgrade under the circumstances, in anticipation that it might not make the coupling with the portion of the train towards which it was being kicked, and that the car failed to couple as a result of this negligence, and that such negligence of the defendant together with the negligence of the engineer in backing the train, without any signal, or the negligence of the defendant's employee in signaling the engineer to back under the circumstances, were proximate causes of the plaintiff's injuries. It was therefore not error for the court to fail to charge the jury as requested by the defendant, that if the jury should find that the "sole and proximate cause of the injury to plaintiff was the failure of the car on which he was riding to couple on impact," the jury should find for the defendant.

The court charged the jury that if it appeared from the evidence that the car in which the plaintiff was riding failed to couple by impact with the car with which it was supposed to be coupled, and that this was alleged by the plaintiff as negligence of the defendant, and if it further appeared from the evidence that the couplers worked properly a short time thereafter, and that the couplers were shortly thereafter inspected and found to be in good order and without defect, if the jury should find this to be true, then the jury could not find for the plaintiff on account of any negligence alleged as to the failure of the couplers to couple. The charge is excepted to on the ground that the court submitted as an issue of fact to the jury whether the couplers were defective in violation of the safety-appliance act, whereas, as contended by the defendant, it appeared conclusively from the evidence that the couplers were not defective. The defendant also excepted to the failure of the court to charge categorically that it appeared from the evidence that the couplers worked properly "a short time thereafter and the said couplers were shortly thereafter inspected and found to be in good working order and without defect;" and that therefore the jury could not find for the plaintiff on account of the negligence alleged as to the failure of the couplers to couple on impact. While there was no dispute in the evidence that inspectors for the defendant did inspect the couplers on the day after the occurrence complained of, tested them, and found that they coupled on impact, and that they found the couplers in good working condition, it can hardly be said that it was prejudicial to the defendant for the judge to charge the jury that if they should find that the couplers were in proper condition after the occurrence complained of, there could be no recovery on the ground that the defendant was negligent in maintaining defective couplers, and not to instruct the jury that the couplers, shortly after the occurrence complained of, were inspected and found to be in good working order and without defect, and that there could be no recovery on the ground that the defendant was negligent in maintaining defective couplers. While ordinarily the court should not in a charge to the jury submit as an issue a matter which is undisputed, this is not always necessarily harmful or error demanding a new trial. In this case, under the charge of the court, the jury could not have done otherwise than find, under the undisputed evidence, that the couplers had been inspected immediately after the occurrence complained of and found to be in good condition and not defective. The charge as made and as requested was in other respects favorable to the defendant. The court did not err in charging and in failing to charge as complained of.

The defendant excepts to the failure of the court to give a requested charge that if the plaintiff in the exercise of ordinary care could have stopped the car on which he was riding so as to avoid the collision in which he was injured the jury should find for the defendant. It was held in L. N. R. Co. v. Hood,149 Ga. 829 (102 S.E. 521): "In a suit for personal injuries, brought against a railroad company under the Federal employers' liability act, where it is shown that the railroad company was guilty of negligence having a causal relation to the injury, contributory negligence upon the part of the plaintiff will not be a bar to a recovery, although the injuries could have been avoided by the exercise of ordinary care upon the part of the plaintiff." If this request meant that if the plaintiff was guilty of contributory negligence in causing his injury he could not recover, it was an incorrect statement of the law as applied to cases under the Federal employers' liability act, and the court properly refused to give it in charge. Under that act, notwithstanding the plaintiff's negligence may have been a contributing cause of his injury, he is not barred of recovery if the negligence of the defendant also proximately contributed to the injury. There was evidence from which the jury could have inferred that the defendant was negligent in kicking the car upgrade on a dark night with the expectation that it would couple on impact with other cars, and that after the failure of this car to couple and afterwards running back downgrade the defendant was negligent in backing its engine and the cars attached toward the other car and causing the collision. If, however, this request meant that if the plaintiff's negligence caused the collision, meaning the sole proximate cause thereof and the consequent injury to the plaintiff, the jury should find for the defendant, the charge would have been an instruction to the jury that if the negligence of the plaintiff was the proximate cause of his injuries he could not recover. The matter contained in the request as thus construed was covered by the general charge given, wherein the court instructed the jury as follows: "If you find . . that the plaintiff himself was also guilty of negligence contributing to his injuries, the fact that plaintiff was guilty of negligence would not bar a recovery, but would require you to reduce the damages which you might find in his favor in proportion to the amount of negligence attributable to him. I charge you further in that connection that the plaintiff can not recover if his injuries were caused by his own negligence." This is also true as the court further charged as follows: "If the plaintiff was negligent and his negligence was the sole and proximate cause of the injury there could be no recovery, and you would go no further in your investigation but would find a verdict for the defendant." Besides, the court substantially charged in the language of the request wherein the court stated to the jury that if the plaintiff "could, in the exercise of ordinary care and diligence which I have already charged you, have stopped the car so as to have avoided the collision in which he was injured, [and] should you find that his injury could have been avoided in that way you would be authorized to find a verdict for the defendant." Therefore the court did not err in refusing to give the request to charge.

The court charged the jury that if the plaintiff by the exercise of ordinary care and diligence could have stopped the car on which he was riding and avoided the collision in which he was injured, and the jury should so find, the jury would be "authorized" to find a verdict for the defendant. The defendant excepts to the use of the word "authorized," and insists that the court should have used a mandatory expression such as "required." The defendant insists that under such circumstances the jury would be under a duty to find a verdict for the defendant rather than authorized to do so. The charge, whether it contained the word "authorized" or a mandatory word such as "required," was, as indicated above in the Hood case, supra, an erroneous statement of the law favorable to the defendant. Under the ruling in the Hood case it would have been error to charge the jury that if the plaintiff by the exercise of ordinary care could have stopped the car so as to avoid a collision the jury would be either authorized or required to find a verdict for the defendant. Such charge would have omitted from the consideration of the jury other alleged acts of negligence on the part of the defendant which may have contributed to the plaintiff's injury. The charge was not harmful to the defendant.

The charge to the jury that if they should find that the plaintiff was entitled to recover it would be their duty to assess damages as they "see fit," was not error in that it left the jury unbridled and unrestrained to assess damages without reference to any rule, where the judge elsewhere in the charge instructed the jury as to the elements of damages and the measure of damages.

It was not error prejudicial to the defendant for the court to charge the jury that the defendant contended that the plaintiff "in his employment assumed the risk of injury from the train which caused his injuries," on the ground that the defendant's contention was that the plaintiff was an experienced railroad man and thoroughly acquainted with the method of switching cars, and that in getting upon the car which was "kicked" and from which he afterwards fell as the result of a collision he assumed the risk incident to the movement of this car. It is alleged that this charge was error in that the jury was led to believe that the defendant was admitting that the train was the cause of the plaintiff's injuries rather than the movement of the car from which the plaintiff fell. The charge in effect included an instruction that the plaintiff assumed the risk which the defendant contended he assumed, and was more favorable to the defendant than it would have been if it had been rendered as the defendant contends for. This charge was not harmful to the defendant.

After charging that there are certain risks of the employment which the employee assumes, and that the employee assumes the risk of such dangers as are normally necessarily incident to the occupation, whether he is aware of them or not, the court charged the jury as follows: "A risk of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work, or suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair, and of the risk arising from it, unless the defect and risk alike are so obvious that any ordinary prudent person under the circumstances would have observed and recognized them." This charge is excepted to as being inapplicable and not adjusted to the pleadings and the evidence, in that, as contended by the defendant, it had reference to appliances required under the safety-appliance act, such as proper automatic couplers, and that since it appeared conclusively from the evidence that there was no violation of the safety-appliance act in this respect and that the couplers were not defective but were proper and in good condition, this charge was error in that it was calculated to cause the jury to believe that they might infer from the evidence that the defendant had failed to provide safe appliances such as properly equipped automatic couplers, and that it authorized the jury to find for the plaintiff on the ground that the defendant was negligent in failing to have the cars equipped with proper automatic couplers. Since the court elsewhere instructed the jury that if they should find from the evidence that the couplers had been inspected immediately after the occurrence complained of and found to be in proper condition there could be no recovery against the defendant on the alleged negligence in failing to have its car equipped with the properly required automatic couplers, etc., and since it appeared from the uncontradicted evidence that the couplers had been inspected and found in proper condition and not defective, the charge excepted to was not error for the reason assigned. The jury must have thoroughly understood from this charge that any question of negligence as respected the couplers was out of the case, and that there could be no recovery on the ground of negligence with reference to the couplers. Therefore the charge above complained of that the employee does not assume the risk until he becomes aware of a defect arising from it, unless the defect and risk are so obvious that an ordinary prudent person under the circumstances would observe and recognize them was not error. See in this connection the "Little-Watchman" case, Southern Railway Co. v. Lunsford, 57 Ga. App. 53,57 (194 S.E. 602).

The court charged the jury that the plaintiff contended that his injuries are permanent and will prevent him from engaging in his occupation as flagman; that he was thirty-six years of age at the time he received his injuries, and was earning approximately $225 a month, and that if "he is otherwise entitled to recover these would be legitimate items of damage to be considered in making your award, that is the element of pain and suffering, past, present, and future, reduction in his earning capacity and loss from employment." This charge is assigned as error on the ground that the jury was thereby instructed that the plaintiff could recover as an element for pain and suffering the fact that the plaintiff was prevented from engaging in his occupation as a flagman, irrespective of whether or not the plaintiff was able to earn money at some other occupation. A reading of the charge just quoted will reveal that it is not subject to the criticism made. The charge was not error on the ground insisted on.

The jury were authorized to find from the evidence that the plaintiff, as the result of the injury, was impaired in his capacity to do physical labor and to work. As a result thereof he was out of a job for a long while, and at the time of the trial was out of a job, and that after he was injured he performed temporary work for which he received less pay than he had been receiving as a flagman for the defendant at the time of the injury. There was also evidence as to the nature and character of his injuries. His age appeared, and the mortality tables were in evidence. The evidence was therefore sufficient to authorize the jury to find that the plaintiff's earning capacity had, as the result of the injury, been impaired in an ascertainable amount of money as compensation therefor. It was not error for the court to submit this to the jury as an element of damage recoverable.

The jury were authorized to find that the plaintiff, as a result of the defendant's negligence, suffered physical injuries, in that several ribs, an arm, and a wrist were broken, his back, leg, and knee were injured, and that he suffered a diminution in his earning capacity and loss of time from work, that he was thirty-six years of age at the time of the injury, with a life expectancy of thirty years, and that, as a result of the injuries he underwent much pain and suffering. The jury were also authorized to find that the plaintiff had sustained his injuries solely as a result of the negligence of the defendant, unmixed with any contributory negligence of the plaintiff. It therefore can not be said as a matter of law that the verdict for $6000 was excessive, or that its size indicated that the jury in rendering it was actuated by prejudice or bias.

The evidence authorized the verdict, and no error appears.

Judgment affirmed. Sutton, J., concurs. Felton, J.,dissents.