Opinion
35574, 35575.
DECIDED APRIL 14, 1955.
Damages. Before Judge Smith. Berrien Superior Court. November 20, 1954.
Bennet Vann, T. K. Vann, Jr., H. L. Jackson, for plaintiff in error.
1. The evidence demanded a finding that the father's action in permitting and directing his 8 1/2-year-old son to drive the father's agricultural tractor along a public highway and over a railroad crossing under the existing conditions was such negligence as would bar a recovery by the father for the damages he claims, arising out of a collision between the tractor and the defendant's train.
2. The court erred in charging the prima facie rule, Code § 94-1108, after the defendant had introduced evidence to contradict the plaintiffs' contentions of negligence and the rule had vanished from the case.
3. For the reasons given above, the court erred in denying the defendant's amended motions for new trials.
DECIDED APRIL 14, 1955.
Tommy Bennefield, by next friend, and C. R. Bennefield, in separate actions, sued Atlantic Coast Line Railroad Company for damages arising out of a collision involving the defendant's train and a tractor owned by C. R. Bennefield and being operated by Tommy Bennefield. The plaintiffs are father and son. Tommy Bennefield claims damages resulting from personal injuries. C. R. Bennefield claims damages for injuries to the tractor, for medical and hospital expense, and for loss of the services of his son. On proper motion the two cases were consolidated for the purpose of trial. The jury found for the plaintiff in each case. The defendant's separate amended motions for new trials were denied, and it excepts in separate bills of exceptions.
1. The evidence shows that the father, C. R. Bennefield, instructed his 8 1/2-year-old son, Tommy Bennefield. to drive the father's agricultural tractor from their home to Tifton, Georgia, for the purpose of having repairs made on the tractor. The father was trailing the son in his automobile. In order to reach Tifton, the son had to drive the tractor along a public highway and through the town of Enigma. The father knew that the son had to drive the tractor over a railroad crossing in the town of Enigma. The railroad crossing was in a populous and congested locality, and the public highway over which the son was driving was the main artery of the town of Enigma and was used by a large number of motorists and pedestrians at all hours of the day and night. Before reaching the railroad crossing, the father, who was trailing behind the son, drove his automobile off the highway and stopped to converse with someone. The son continued on and around a curve out of sight, and soon thereafter the collision between the train and the tractor took place.
These facts plainly and indisputably show that the father was guilty of such negligence as would bar a recovery by him of the damages he seeks. Atlanta Charlotte Air-Line Ry. Co. v. Gravitt, 93 Ga. 369 ( 20 S.E. 550, 26 L.R.A. 553, 44 Am. St. R. 145); Woodham v. Powell, 61 Ga. App. 760 ( 7 S.E.2d 573). The court erred in denying the amended motion for a new trial in the father's case.
2. The remainder of the opinion will be devoted to the son's case.
Special ground one of the amended motion complains that the court erred in charging the jury the prima facie rule. The ground is meritorious. The prima facie rule vanishes from the case when the defendant railroad company produces some evidence contrary to the plaintiff's contentions of negligence ( Seaboard Air-Line Ry. Co. v. Fountain, 173 Ga. 593 (2b), 160 S.E. 789); and when the defendant does produce such evidence and the prima facie rule vanishes, it is error for the court to charge on the rule. Atlantic Coast Line R. Co. v. Rowe, 83 Ga. App. 540, 543 ( 64 S.E.2d 216), and citations. The fact that the court in the charge correctly stated the effect on the prima facie rule by the defendant's introduction of some evidence contrary to the plaintiff's contentions of negligence does not cure the error, because "it is not cured merely by further explanation to the effect that, when the defendant introduces evidence as to its manner of running its locomotives and cars, the question of negligence is then to be decided upon its facts, since, after the introduction of such evidence, the plaintiff must make out his case without any aid from the statute, and the presumption, being dead, should not be given in charge at all. Jones v. Powell, 71 Ga. App. 202, 203 ( 30 S.E.2d 446); Macon, Dublin Savannah R. Co. v. Stephens, 66 Ga. App. 636, 639 ( 19 S.E.2d 32); Atlantic Coast Line R. Co. v. Royal, 84 Ga. App. 247 (2) ( 65 S.E.2d 827)." Louisville Nashville R. Co. v. Bennett, 89 Ga. App. 534 ( 80 S.E.2d 195).
3. In view of the concession in the plaintiff in error's brief that the father's negligence was not attributable to the son, it is unnecessary to rule on special ground 2 of the amended motion for a new trial.
4. Without ruling on whether a charge that a railroad company must operate its trains at a reasonable and safe rate of speed under the surrounding conditions and general situation is reversible error, we merely hold that it is a better practice, and one that should be followed, for the court to charge the general rule that a railroad company must exercise ordinary care under the circumstances in the operation of its trains.
5. The general grounds of the motion for a new trial in the son's case have been expressly abandoned.
The court erred in denying the amended motions for new trials.
Judgment reversed. Quillian and Nichols, JJ., concur.