Stewart Ex Rel. Stewart v. Atlantic Coast Line Railroad ( 1932 )

Pee CueiaM.

At the close of plaintiff’s evidence and at the close of all the evidence, defendant made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled the motions and in this we think there is no error.

The evidence on the part of plaintiff sustained his contentions and that on the part of defendant sustained its contentions. The jury found for the plaintiff.

The court below in analyzing the matter in the charge, said: “The defendant contends that the work was all completed before this injury complained of; that if there was any negligence that it was that of the independent contractor, and that the contractor did this in his own way, if be did do so, and tbat any negligence on tbe part of tbe defendant or anybody there was not tbe proximate cause of tbe injury to tbe boy; tbat it could not have been foreseen; tbat it was an accident, an accident happening from unknown causes or from an unforeseen result of a known cause. Plaintiff contends tbat they were negligent in creating those conditions from which in tbe ordinary use of tbe street by automobiles it could have been anticipated it would do tbe very thing tbat happened in this place. . . . So it is a question for you.”

Tbe court below defined accurately negligence, proximate cause, independent contractor and damage.

W. A. Stewart, for plaintiff, testified in part: “I was sitting up in bed at the window, looking out of tbe window when tbe truck came out of Bragg’s Alley, made a turn with tbe wheels like tbat, and when she did, tbe rocks flew up and in tbe meantime tbe boy was struck by a rock and tbe rocks flew over tbe porch. Tbe boy was standing right in tbe door of tbe bouse. I could see him at tbat time. I could see tbe rocks fly up. Some were fine rocks. They were of all kinds. When tbe boy cried out, I beard a rock strike tbe porch. He screamed. His mother was standing there in tbe passage. She ran and grabbed him. She was standing in tbe passage. I didn’t see bis eye until after be came from tbe doctor. It was then all tied up. It was bis right eye. He is now blind in tbe eye. He lost tbe sight of tbe eye.”

Tbe question of proximate cause was left to tbe jury. Tbe court below charged as follows: “If tbe jury should find tbat tbe injury to tbe plaintiff could not have been caused without tbe independent acts of tbe Oaks Farm truck, and tbat tbe plaintiff would not have been injured were it not for tbe truck turning into Queen Street in front of tbe bouse of tbe plaintiff, and tbat such act could not bare been reasonably anticipated by tbe defendant, then I charge you tbat tbe negligence of tbe defendant could not be considered to be tbe proximate cause of tbe injury and tbe jury should answer tbe first issue, No. Therefore, if there is a responsible, intervening cause by tbe person legally responsible for bis acts, in this case, tbe automobile truck, which cause could not in tbe natural and ordinary course of things be anticipated by tbe defendant so acting as to make negligence of defendant injurious to a third person, as in this case throwing rock from tbe roadbed of tbe defendant, then tbe person so intervening acts as a non-conductor and insulates tbe negligence of tbe defendant, thus making tbe negligence of tbe third person tbe proximate cause of tbe injury and freeing tbe defendant from liability because of tbe fact tbat bis negligence could not have caused .the injury without tbe intervening act of tbe third person, then I charge you tbat tbe negligence of tbe defendant could not have been considered the .proximate cause of the injury and you would answer the first issue, No. Now, gentlemen, applying these principles of law to the testimony, it becomes a question of fact for you to determine from the evidence whether you find that the Atlantic Coast Line Company was negligent and that its negligence was the proximate cause of the injury complained of by the plaintiff in this case.”

"We think the special instructions, as prayed for by the defendant, properly declined by the court below. The exceptions and assignments of error, as to the admission and exclusion of evidence, cannot he sustained. We think in the charge of the court below the law applicable to the facts was correctly stated. The contentions were given fairly and impartially for both plaintiff and defendant. On the record we can see no prejudicial or reversible error.

No error.