Gay v. Smith

Sutton, J.

1. A petition alleging that the plaintiff’s son was in an automobile being driven by another, that about 6 a. m. on the morning of December 24, 1932, the same being a dark and foggy morning, the automobile was proceeding southwardly from Washington, D. C., by way of Augusta, Georgia, over a public highwaj’’, that it ran into a gondola car which formed a part of the freight-train standing across and blocking the highway at South Wrens, in Jefferson County, Georgia, that the fog was dense and heavy at this point, which prevented the driver of the automobile from seeing the railroad-car across the highway, that neither the driver nor other occupants of the automobile knew of the railroad crossing at this point, that there was no light, no flagman waving a lantern, or other signal or warning to people traveling the highway, of the presence of the train across the highway, that the gondola car and the pavement of the highway were of a similar color and damp with the mist, and this, with the foggy and dense atmosphere and the .darkness, rendered the train car very much the same color of the pavement on the highway and very difficult to see, and that as a result thereof, the driver of the automobile using due care and caution in the premises and proceeding at an orderly rate of speed, about 30 miles an hour, plaintiff’s son was instantly killed when the automobile collided with the standing freight-car, set up a cause of action, and the judge did not err in overruling the general demurrer. Central of Ga. Ry. Co. v. Heard, 36 Ga. App. 332 (136 S. E. 533), and cit.; Mann v. Central of Ga. Ry. Co., 43 Ga. App. 708 (160 S. E. 131); Rape v. Tenn. &c. Ry., 47 Ga. App. 96 (169 S. E. 764); Central of Ga. Ry. Co. v. Mann, 48 Ga. App. 668 (173 S. E. 180). “Every case of this sort must, in the last analysis, be determined upon its own facts, and we think the instant petition was not fatally defective as failing to state a cause of action. It sufficiently avers negligence on the part of the defendant, and does not as a matter of law disclose-such negligence or want of care on the part of the decedent as to bar a recovery. The defendant, of course, had the right to use its tracks at this crossing, and would not be.guilty of negligence in the mere act of stopping its cars for such length of time as might be reasonably necessary in the conduct of its business, but it still should comply with any valid municipal ordinances or other lawful regulations enacted for the public safety; and regardless of prescribed regulations, it might be true that in particular circumstances [such as a misty and foggy morning] due care for the safety of travelers would require the placing of a guard, light, or other warning at a proper point for the purpose of giving notice for the time being that the street was obstructed.” Mann v. Central of Ga. Ry. Co., 43 Ga. App. 708 (160 S. E. 131).

2. The testimony of the driver of the automobile in which plaintiff’s son was killed, to the effect that the density of the fog had been varying all along, that he would adjust the speed of the automobile to suit the fog, and, as to how far he could see ahead, that it was very thick at the place where the wreck occurred, because, witness stated, he thought “the smoke had been coming down,” was not inadmissible, and the court did not err in overruling the defendant’s objection to this testimony upon the ground that it was a conclusion of the witness.'

3. During a colloquy between counsel and the court as to what the driver of the automobile had testified in answer to questions on cross-examination of the witness, the trial judge stated, “I could not express any opinion on what is-true or untrue. The witness testified that he took his foot off the gas, and that is as far as I heard him go.” This does not require a new trial. Scarborough v. State, 46 Ga. 26, 33; Croom v. State, 90 Ga. 430 (17 S. E. 1003); Jones v. Pope, 7 Ga. App. 538 (67 S. E. 280); Aronoff v. Woodard, 47 Ga. App. 725 (9) (171 S. E. 404). The court did not allude to the testimony of the' witness in such a manner as to give to it judicial endorsement or approval.

4. While the speed of a vehicle may be estimated by witnesses (Fisher Motor-Car Co. v. Seymour, 9 Ga. App. 465, 91 S. E. 764; 70 A. L. R. 541), it was error for the court to allow a witness to testify as to the rate of speed a person could ordinarily operate an automobile with safety on the night in question, having regard to the atmospheric conditions, the condition of the highway, and the location and condition of the crossing. 23 C. J. 512, and cit. However, a new trial will not be granted for this reason, as this error was harmless, in that similar evidence of other witnesses was admitted without objection from the defendant and was before the jury. See City of Atlanta v. Hawkins, 45 Ga. App. 847, 849 (166 S. E. 262); General Tire & Rubber Co. v. Brown Tire Co., 46 Ga. App. 548 (3 c) (168 S. E. 75).

5. The trial judge did not err in permitting Carl Nelson, a witness for plaintiff, who arrived upon the scene of the collision some few minutes thereafter, to testify that a white man dressed in overalls, with a lantern in his hands, “in charge of things,” and apparently a train employee, made a certain statement to him as to how long the train had been standing there at the time of the collision. Witness stated the facts upon which he assumed that the person referred to was an employee of the railroad company. See A. & W. P. R. Co. v. Newton, 85 Ga. 517 (11 S. E. 776).

6. As the plaintiff was suing for the death of her son as a partial contributor to her support, it was not error for the court to permit evidence to go before the jury as to the financial condition of the family and with reference to the amount of money earned by the father of the deceased boy and the amount contributed by him towards the support of the family. There was no error in the court’s charge upon the subject of dependency. In this State a recovery may be had by a mother where the dependency is only slight. Such charge was not misleading, incorrect, or confusing. Central of Ga. Ry. Co. v. Henson, 121 Ga. 462 (49 S. E. 278); W. U. Tel. Co. v. Harris, 6 Ga. App. 260, 266 (64 S. E. 1123); Fuller v. Inman, 10 Ga. App. 680, 686 (74 S. E. 287).

7. The court did not err in admitting in evidence the ordinance of the Town of Wrens, limiting the blocking of crossings to Jive minutes. The plaintiff alleged that the crossing was blocked for more than five minutes, in violation of an ordinance of such municipality. There was evidence, which the court allowed over objection of the defendants and which we have held admissible, going to show that a person, apparently a member of the train crew, stated immediately after the accident that the train had been at the crossing some ten or fifteen minutes before the collision. It was alleged in defendant’s answer that the train arrived at the crossing at 6 :10 a. m., and defendant’s engineer testified on direct examination that the train arrived at the crossing at 6 :10 a. m., and that the collision occurred at 6 :16 or 6:17. There was no error in admitting this ordinance, or in instructing the jury that a violation of this ordinance by the railroad company would be negligence per se, and, if the proximate cause of the injury to plaintiff’s son, would authorize a recovery.

8. The court erred in refusing to charge the jury, upon timely written request by the defendant, that there was a State law prohibiting automobiles from traveling upon the highways of this State at more than 40 miles an hour, and that there was an ordinance of the Town of Wrens limiting the speed of automobiles to 12 miles an hour, which ordinance was put in evidence by the defendant. The court stated to the jury: “when one violates any valid municipal ordinance or public law of this State,” he is guilty of negligence as a matter of law. This was not sufficient, particularly in view of the requests duly made. There was evidence authorizing the jury to find that the automobile in which plaintiff’s son was riding was being driven at a high and unlawful rate of speed, to wit, in excess of 40 miles an hour. The noise and sound made by the motor of the automobile, heard by the members of the train crew, was a circumstance to be considered in this connection. There was evidence that the driver of the automobile and one of the occupants admitted while in the hospital, shortly after the wreck, that the automobile was being operated at an unlawful rate of speed at the time of the accident. A witness for the defendant testified that an automobile passed him up the road, not far from the scene of the accident, traveling at a terrific rate of speed, 55 or 60 miles an hour, and that this automobile had baggage tied on the outside of it, and that the occupants thereof were dressed in uniforms of United States Naval Academy cadets.

9. None of the other grounds of the motion for new trial show reversible error. Where a principle is substantially covered in the charge given, it is not error to refuse a request therefor. The court did not err in defining negligence as “a failure to use ordinary care.” Immediately in connection therewith the court defined ordinary care. The court then specifically charged the jury that “Negligence is a failure to use ordinary care, and ordinary care is that same degree of care which every prudent man would exercise with reference to his own person or property under the same or similar circumstances.” Under the charge of the court as a whole, there was no error in the instructions given on negligence or comparative negligence, or in refusing to give the instructions requested by the defendant on these subjects, as the same were sufficiently covered in the charge given.

10. No error appears in the rulings upon the special demurrers to the petition. While a plaintiff is bound to plead his case with sufficient particularity and definiteness to enable the defendant to clearly understand the nature of the charge made and prepare his defense thereto, a plaintiff is not required to plead his case with such minute detail as to set forth his evidence. Furthermore, under the evidence adduced, the information called for by the special demurrers was not of sufficient importance to have likely affected the result.

11. As a new trial is granted for the reasons stated in division 8 of this opinion, it is not necessary for this court to pass upon the sufficiency of the evidence to support the verdict.

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

Judgment reversed.

Jenhins, P. J., and Stephens, J., concur.