Parker v. Georgia Pacific Railway Co. , 83 Ga. 539 ( 1889 )

Bleckley, Chief Justice.

1. Concede that the questions to Perkerson were leading, their allowance would not be cause for a new trial. It would be a very extreme case indeed in which the mere form of the questions to a witness would justify a reviewing court in setting aside the verdict and j udgment.

2. There was sufficient evidence that the rule-book admitted in evidence contained the rules of force when the plaintiff was injured, and whether he had knowledge of them or not was a question not going to the admissibility of the rules but to their binding effect upon his .conduct.. .That tih,e rules existed, and what they were, constituted .one ,step in, the defendant’s evidence, and that could be taken without first showing that the, plaintiff had knowledge of them.

3. The question to Turner, “ When the brakeman in the discharge of his duty gives a signal for the engineer to stop, and he the right' to rely upon the engineer stopping ?” is not quite intelligible as it stands in the transcript of the record. Doubtless it means, has or had he the right ? etc. Thus construed, the right would be for decision by the jury,, not by the witness. That the • question , was. objected to and ruled inadmissible without any ground of objection being stated, is of no consequence. Where the court sees for itself that the question is not legal, no ground need be mentioned for information of the court, and if counsel propounding the question want the information, they should call for it.

4. Whether it be possible to transact business unless a brakeman giving a signal acts upon the idea that the engineer will obey it, is not for the witness, but for the jury to decide. It was not error, therefore, not to allow the witness Turner to decide it in this case. That the court thought the question immaterial and so said in ruling upon it, would not vitiate the trial, or defeat the verdict.

5. Failure of the court to instruct the jury in express terms (the charge as given plainly implying such matter) that an employé being in the discharge of his duty, has the right to rely upon other employes doing their duty, is not error. In this case the jury must have understood, from the charge given, that any omission of ordinary -and reasonable care by the co-employés of plaintiff would be a violation of his right to the safety and secui’ity which'the observance of such diligence would afford.

6. The failure of a railroad employé to extricate himself from a perilous situation when he could do so by the exercise of ordinary care, will bar him from recovery for a personal injury resulting from such failure, though the peril was brought upon him by the negligence of a co-employé. It is his duty to avoid the C’bnsequenoes of negligence when he can do so by the use of ordinary care. Code, §2972. And to recover,' he must be without fault. Id. §3086.

7. To refer to the jury whether in certain circumstances detailed by the evidence the plaintiff ought to have done so and so, is not error. The charge complained of in the 7th ground of the motion for a new trial simply left to the jury the question whether certain conduct on his part would or would not be negligence.

8. When the jury return into court and request to be recharged on a certain part of the case, to wit, the plaintiff’s negligence, the counsel for both parties being present, it is the right of the court to comply with their request. And it is also the right of the court to stop there and not recharge upon the defendant’s negligence, though counsel for the plaintiff call for a recharge or a further charge to be given on the latter subject. The jury having confined their request to the negligence of one party, it is presumable they were in no perplexity as to that of the other. It was also the right of the court to volunteer an additional charge on the general rule of law touching the preponderance of evidence as a rule of decision in civil cases, and to add that by the observance of this rule the jury, in the opinion of the court, would have no difficulty in arriving at a verdict. Whilst- this may have implied that the court thought the evidence preponderated on the one side or the other, it conveyed no intimation as to what the evidence was, or its effect, or which party ought to succeed. In recharging on the plaintiff’s negligence, the court stated the law accurately, as we think; and though the jury were not reminded that if the plaintiff could not have protected himself by the use of ordinary care, his failure in such case would not defeat him, yet that was plainly implied in the charge itself. There would be no sense in referring to the protecting power of ordinary care as a cause for defeating the action if the absence' of such protecting power would equally with its presence render the use of ordinary care necessary. In other words, to say that ordinary care must be used when it will avail, is plainly to imply that it need not be used when it will not avail.

9. The court, after recharging the jury, said to them : “This jury is, in the eye of the law, as capable of deciding this case and reaching a verdict as any that may be empanelled hereafter, and 1 am disposed to give you some further opportunity to consider your verdict. Gfo to your room and make an honest effort to agree on a verdict, and follow the rule I have given you, and I do not think it will trouble you in agreeing.” This, we think, was not unduly pressing the jury to a verdict, though it went, perhaps, to the allowable limit. White v. Fulton, 68 Ga. 511; Central Railroad v. Neighbors, ante, 444. There was no error in refusing a new trial.

Judgment affirmed.