Atlantic Coast Line Railroad v. Brand , 79 Ga. App. 552 ( 1949 )

The court erred in overruling the railroad's motion for a new trial for the reasons shown in division three of this opinion.

DECIDED MAY 21, 1949. ADHERED TO ON REHEARING JULY 8, 1949. Harry D. Brand instituted this action for damages against the Atlantic Coast Line Railroad Company, W. P. Carew, and A. S. Boynton for injuries received from a collision between the defendant company's train operated by the two other defendants as its engineers and the plaintiff's automobile which he was operating on December 15, 1948, at a public crossing in the city limits of Thomasville, Georgia. The petitioner alleged that the defendants were negligent in the following particulars: (a) in failing to check the speed of said train as it approached said crossing, (b) in failing to give any signal to warn persons traveling on the crossing of the approach of a train, (c) in failing to keep and maintain a constant and vigilant lookout along the track ahead, (d) in failing to anticipate the presence of the plaintiff at the time and place of the collision, (e) in failing to constantly toll the bell of the locomotive, (f) in not having a flagman or someone to warn traffic of the approach of said train, (g) in exceeding the speed limit of 20 miles per hour as established by an ordinance of the City of Thomasville. The plaintiff further alleges that, as a result of the defendant's negligence, he received serious bodily injuries and damage to his automobile in the amount of $790, and also prays for $8,000 for physical and mental pain and suffering as a result of his injuries, and in addition thereto that he was totally disabled to work, and that his ability to work would be impaired for an indefinite time, and that his average earnings were $200 per month.

The defendants answered said petition denying any acts of negligence and alleging that the plaintiff was injured as a result of his own negligence. The jury returned a verdict for the plaintiff in the sum of $4,138.85 and the sum of $765 for the use of the Michigan Mutual Liability Insurance Company. The defendants filed their motion for a new trial which they later amended. The court overruled said motion and the defendants excepted. 1. Ground one of the amended motion for a new trial assigns error on the following charge: "``After considering the evidence and the law as given you in charge, you shall find that the defendant engineers were guilty of any one or more of the acts of negligence charged, and that such negligence, if any, caused, contributed to and was the proximate cause of the plaintiff's injuries, if any, the plaintiff will be entitled to recover, unless you further find that the plaintiff could have, in the exercise of ordinary care, avoided his alleged injuries.' Movants aver that such charge was erroneous and injurious to them because it was an expression of opinion by the court as to what had been proved and the statement ``You shall find the defendant engineers were guilty of any one or more of the acts of negligence charged' was a positive instruction by the court that the jury find the defendant guilty of negligence." There is no merit in this ground. The original charge contains the excerpt excepted to. The trial judge later corrected and amended his approval which shows that the actual charge was "after considering the evidence and the law as given you in charge, should you find the defendant engineers were guilty, etc." This correction eliminates the ground of complaint on this excerpt.

2. Ground two assigns error on the following excerpt: "The court instructs you that when those in charge of a railroad train neglect to comply with the statutory precautions in approaching the highway, and a person on the crossing is struck and injured by the train, the only defenses open to the company are, that the injury was done by the consent of the person injured, or that, by the observance of ordinary care, he could have avoided the injury; or, in mitigation of damages, that his negligence contributed to it. The burden is upon the defendant to satisfy the jury by a preponderance of the evidence either that the plaintiff was consenting to his injuries; or that he could have, in the exercise of ordinary care, avoided the injuries; or, in mitigation of damages, that he was guilty of contributory negligence." While the contention made, that the burden does not shift to the defendant until the plaintiff produces evidence that the act by the railroad in violation of law was the proximate cause of the injuries, is technically correct, the court in this case several times charged that the negligence charged against the defendant must have been the proximate cause of the injuries before the plaintiff was entitled to recover. We do not think that the omission of the statement from this excerpt was harmful error in this case, especially when the only questions were whether the railroad's negligence or that of plaintiff was the proximate cause of the injuries.

3. Grounds three and four assign error on the following excerpts from the charge: "It is not negligence, as a matter of law, for one not aware of the approach of a train, to fail to stop, look or listen before attempting to cross a railroad track, and the failure to do so would not, as a matter of law, constitute negligence per se. . . A person who is not aware of the approach of a train to the crossing, attempting to cross the track at said crossing, cannot, as a matter of law, be guilty of such contributory negligence as would bar a recovery by him." The complaint is, that these excerpts were confusing and misleading to the jury, and that the jury might have understood them to mean that a person not aware of the approach of a train could not possibly be guilty of negligence which would bar a recovery. We think these grounds are meritorious. While the excerpts state correct legal principles, they may not be understood by jurors, composed of laymen. To those not versed in the law the excerpts have two meanings, one that the issue is solely a question of fact for the jury, and the other, that one crossing and unaware of the approach of a train cannot possibly be guilty of negligence per se or negligence which would bar a recovery. No one can tell how the jury interpreted the charges. The charging of a correct abstract principle of law which tends to confuse a jury is erroneous. Sikes v. Sikes, 153 Ga. 725 (2) (113 S.E. 416); Central Georgia Power Co. v. Cornwell, 139 Ga. 1,5(2) (76 S.E. 387, Ann. Cas. 1914A, 880); Wylly v. Gazan,69 Ga. 506 (3).

4. Other grounds, not complete enough in themselves to ascertain the error complained of, will not be considered.

The general grounds are not passed on.

The court erred in overruling the motion for a new trial.

Judgment reversed. Parker, J., concurs. Sutton, C. J., concursspecially.

On rehearing the case was considered by the court as a whole under the Act of 1945 (Ga. L. 1945, p. 232, Ga. Code (Ann. Supp. § 24-3501), and on rehearing the judgment of reversal is adhered to.

Felton, Gardner and Worrill, JJ., concur; Sutton, C. J., andMacIntyre, P. J., concur specially. Townsend, J., dissents. Note. When this case was first decided Judge PARKER was living and participated in the decision; but when the case was considered on motion for rehearing he had died and Judge WORRILL had been appointed to succeed Judge PARKER, and participated in the case.