Opinion
36201.
DECIDED MAY 17, 1956. REHEARING DENIED JULY 17, 1956.
Tort; railroad crossing collision. Before Judge Henson. Fulton Civil Court. March 6, 1956.
James K. Rankin, Powell, Goldstein, Frazer Murphy, for plaintiff in error.
Dudley Cook, Joe Parris, contra.
"The term `burden of proof' has a dual meaning: (a) Generally, the burden of proof rests where the pleadings place it; this is recognized as the burden of pleadings, and remains thus placed throughout the trial. (b) The burden of testimony or evidence is shifting, and, during the progress of a trial may alternately shift on facts or issues from one party to the other. As to the burden of pleadings, the trial court has no discretion; it is a matter of law. As to the burden of testimony or evidence, he has a discretion to determine whether or not the evidence produced, together with attending rules of presumption and procedure, under the particular case, has shifted it."
DECIDED MAY 17, 1956 — REHEARING DENIED JULY 17, 1956.
Joe Hester brought suit against the Central of Georgia Railway Company for damages to an automobile trailer. The trial resulted in a verdict for the plaintiff. The defendant filed a motion for new trial, which was later amended. The court denied the motion for new trial and it is on this judgment that error is assigned here.
The petition alleges that on the named date the trailer was being driven by an employee of the plaintiff, one Ralph Fowler. Paragraph 5 alleges that as Fowler was crossing the tracks of the defendant he was run into and struck by a switch engine belonging to the defendant, being at the time operated by one of the agents and employees of the defendant, such person being on the business of the defendant and acting within the scope of his employment at the time.
Paragraph 6, as amended, alleges that as Fowler drove the trailer onto the public crossing he was forced to a standstill because the cars immediately in front of him were standing in the line of traffic preventing him from completely crossing the public crossing and the said railroad tracks. Paragraph 7 alleges that as Fowler remained at a standstill on the crossing he was run into and struck by a switch engine. Paragraph 8 alleges that at the time of the collision Fowler had almost crossed the tracks but the rear of his trailer extended squarely over the tracks on which the switch engine was proceeding. Paragraph 9 alleges that the injury and damage was proximately caused by the negligence of the defendant.
Paragraph 10 alleges that the defendant was guilty of negligence per se in failing to place and keep at the grade crossing a watchman or flagman and by not keeping gates or a signal device sufficient to protect the public from danger and that such failure was contrary to a valid ordinance of the City of Atlanta as follows: "It shall be the duty of every person operating trains across grade crossings in the city to provide at each such grade crossing complete public safety from danger from approaching trains for all persons using the streets at such crossings. For this purpose, persons operating trains, or having control of the tracks, shall place and keep at each such grade crossing at all times a watchman or flagman, or shall install, operate and maintain standard automatic gates or signaling devices sufficient to protect the public fully from the danger of any approaching train."
Paragraph 11, as amended, alleges: Subsection 1: That the defendant did not have the switch engine under control as it approached the crossing. Subsection 2: That brakes were not properly applied so as to slow down or stop the engine before striking the trailer. Subsection 4: That the defendant failed to place signal lights, gates, flagmen, watchmen or other persons at such crossing to warn the persons driving thereon of the approach of the defendant's engine to said crossing. Subsection 5, as amended: That the defendant failed to keep a constant and vigilant watch along the tracks of said engine while approaching the crossing in violation of the laws of the State of Georgia. Subsection 6: That the defendant negligently and carelessly ran the said engine into the side of the plaintiff's trailer.
Paragraph 12 of the petition alleges that the tracks at the point where the collision occurred were straight and there was nothing to prevent the employee who was operating the said engine from seeing the said trailer. Paragraph 13, as amended, alleges that immediately prior to said collision the trailer had a reasonable market value of $7,000 and that immediately after the collision the reasonable market value was only $2,500, said decrease in market value being caused by the negligence of the defendant. Paragraph 14, as amended, sets up the particulars in which the trailer was damaged. Paragraph 15 alleges that the damage was proximately caused by the negligence of the defendant. Paragraph 16 asks for judgment in the amount of $4,500. Paragraph 17, added by amendment, alleges that the operator of the defendant's engine saw or in the exercise of ordinary care should have seen the trailer as it was approaching the crossing. Paragraph 18, added by amendment, alleges that the defendant was negligent in failing to warn the plaintiff's driver that his switch engine was proceeding along said tracks although the plaintiff's driver was in the act of crossing the said tracks at the public crossing before the switch engine arrived at the crossing and that the plaintiff's trailer had just stopped when it was struck by the defendant's engine.
The answer of the defendant denies that the plaintiff owned a trailer with a market value of $7,000; neither admits nor denies that Fowler was operating the trailer; neither admits nor denies the allegations of paragraph 5 except that the defendant does admit that there was a collision, as alleged, between defendant's engine operated by one of its agents and employees, acting within the scope of his employment, and the trailer being driven by a person who gave his name as Ralph Fowler. The defendant denied paragraphs 6, 7, 8, 9, 10 and 11 of the petition and admits paragraph 12 of the petition and in paragraph 8 the defendant says that its engineer saw the trailer when it was approximately 100 feet south of the crossing and saw the trailer make a sudden turn onto the crossing immediately ahead of and in the path of defendant's engine, without checking the speed of the trailer and without giving the crew of the engine any notice that said trailer would turn away from its path and onto the railroad crossing; that the driver of the trailer had an equal opportunity of seeing and discovering the approach of the engine if the driver had been looking ahead in the direction in which he was going, or had reduced the speed of said trailer just before or at the time he made the turn onto the crossing.
The defendant denies the allegations of paragraphs 13, 14, 15 and 16 and in paragraph 10 of the answer says that whatever injuries and damages the plaintiff may have sustained as a result of said collision were brought about by the negligence of the driver of the trailer in his failure to exercise ordinary care in driving the trailer upon the crossing directly in the path of the approaching engine; that had the driver exercised the diligence and care of an ordinary, prudent man in the same or similar circumstances, said driver would have seen, heard and discovered the presence of said engine approaching the crossing before driving the trailer upon the tracks, and accordingly, the plaintiff is not legally entitled to recover any damages whatsoever from the defendant. In this connection the defendant further answering says that its engine was approaching the crossing at a speed of between 12 and 15 miles per hour, that its bell was constantly tolling and that its horn was being blown and that there was no vehicular traffic on the crossing until said trailer without any warning or notice whatsoever, made a sudden turn from its line of drive onto the crossing directly into the path of the defendant's engine and at the same time increasing rather than decreasing or stopping its speed, and the driver of said trailer failed to heed any of the warnings and drove the trailer upon the crossing directly upon the track and in the path of the engine.
The evidence show substantially as follows: Earl Thomas, sworn for the plaintiff, testified that he, as service manager of Trail mobile, Inc., was familiar with the trailer involved in the collision; that he saw the trailer an hour and a half before the collision, having worked on sealing the rear doors of the trailer; that at that time the trailer was in good shape, nothing drastically wrong; that in his opinion before the wreck the reasonable market value of the trailer was around $7,000 and that after the wreck the reasonable market value was around $2,500. On cross-examination he testified that he didn't know when the trailer was purchased; that a new trailer of that model would have cost approximately $13,000 with everything on it; that the average life of a trailer of this type was from 7 to 10 years and that the value depreciated from year to year; that after the wreck his department made repairs to the trailer at a cost of $3,050. On redirect examination he testified that he based his opinion as to the value of the trailer before and after the collision on his experience on other trailers of the same make and model.
The plaintiff, being sworn in his own behalf, testified that he operated trucks and owned the trailer involved in the collision in question; that he bought the trailer in 1950; that he paid $9,000 for it; that it was in good condition before the collision and in his opinion had a reasonable market value of around $7,000 or $7,500; that he had bought several trailers and was familiar with what they cost and their value; that after the wreck the reasonable market value of the trailer was $5,600 after it had been repaired and before it was repaired from $2,500 to $3,000; that he sold the trailer about ten days after it was repaired for $5,600. On cross-examination he testified that he kept the trailer in good shape; that the value of $2,500 to $3,000 was a sort of guess on his part. He testified on redirect examination that his opinion as to the values was based upon his experience.
Ralph Fowler testified that he was approximately 20 years of age; had been driving trucks for about three and a half years and drove the trailer in question approximately two years; that on the day of the collision he was driving on Murphy Avenue and made a left turn crossing the railroad crossing; that he did not come to a complete stop, just swung around where he could see down the track; that the track was clear to his vision both ways; that he put the trailer in second gear and moved three or four miles per hour across the track; that cars were coming on the other side and he had to stop; that there was no flagman, no signaling device, no ringing of bells on the railroad crossing; that he did not see the train coming; that as he pulled up on the crossing and came to a stop the train struck the rear end of the trailer "just as I stopped"; that the impact moved the trailer 12 to 18 inches. He testified that he had the window on the trailer down on the left-hand side; that the window on the right-hand side was up and the vent on the right-hand side was open. On cross-examination he testified that he is not now working for the plaintiff; that he is no longer driving trucks but is now a brickmason; that prior to the collision he had never driven that truck on the road; that he could have gone down the street and not crossed the railroad crossing but that the straight street was rough and he decided to go across the crossing; that he knew the railroad tracks were there; that he never saw the train and never knew what happened until after the accident was over; that it was about 10 o'clock on a bright open morning when the collision occurred; that before he made the turn onto the crossing he was going about 20 miles an hour and that he slowed down before he got to the crossing; that it was not true that he picked up speed as he went onto the crossing. He testified, "the trailer was 31 feet, 8 inches long with the tractor hooked to it. The length from the front of the tractor back to the end of the trailer is at least 45 feet, if not more . . . it is something like 40 or 45 feet, I haven't measured it." He testified as to the position of the trailer on the tracks and stated that he didn't swing in front of the engine but came across the crossing moving slowly. He testified as to the allegation of paragraph 8 of the petition that he, Ralph Fowler, was forced to a standstill in his trailer because the cars immediately in front of him as well as those between that car and the traffic signal were standing still, waiting on the traffic signal to change from red to green, "No, sir, that is not true as to whether I ever waited after I swung onto the crossing, waiting for a red light to change to green, no, sir, there is no red light." He testified that there was nothing in front of him, no traffic, no automobile or trucks or anything anywhere around that crossing except those moving north and south on Lee Street, not across the crossing. (Lee Street runs parallel to the railroad tracks at this point). He testified that he did not see the train as he approached the crossing; that he did not know how fast the train was going; that he did not hear any signals of the approaching train.
Dudley Cook, sworn for the plaintiff, testified as to certain pictures made at the scene of the collision.
J. H. Patrick, sworn for the defendant testified that he has been engineer of the defendant's railroad for the past thirty years and has been employed with the railroad for 37 years; that he was operating the engine in question on the day of the collision; that as he approached the crossing there was nothing in front of the engine; that when he approached the crossing he was in the normal position on the right-hand side of the engine; that his speed at the time was not over 15 miles an hour; that when he was somewhere within 30 feet of the crossing he checked the speed of the engine; that he saw a trailer approaching but that there was no indication that the driver was going to turn onto the crossing; that there was nothing else on the street but the one trailer; that when the engine was within 30 feet of the crossing the driver of the trailer made a sudden turn to the left; that he attempted to stop but he lacked about a foot of getting stopped; that the driver of the trailer didn't reduce speed but picked up speed considerably; that the bell of the locomotive was ringing constantly and that it could be heard a good distance; that the headlights were on the engine and the whistle was blowing; that the engine makes a noise, which could be heard a good distance; that he gave the proper crossing signal; that when he saw the trailer was going to approach the crossing he took hold of the brake valve and put it in emergency; that that would make the engine stop in about 30 feet; that the driver of the trailer gave no signal or warning and did nothing to indicate that he was going onto the crossing; that he used the quick acting brake, — the emergency brake, — that it was not possible to stop the train any quicker than was done under these circumstances; that there were three other people in the cab of the engine with him at the time. He testified that just north of the crossing the street is approximately two and a half feet higher than the level of the rails due to a retaining wall built there to keep the street from falling on the track; that the retaining wall does not obstruct the view of a driver of a locomotive as it approaches the crossing. On cross-examination the same witness testified that he could see both ways at that crossing; that he could see at least two hundred feet before reaching the crossing; that there was no signal light or bell at this particular crossing and that there was no watchman or flagman there and no traffic light; that there was no speedometer on the engine but by experience he knew the speed of the engine; that the trailer was moving at a moderate speed and that at no time prior to the time that he reached the point about 30 feet from the crossing did he know that the driver of the trailer was going to make a turn and come across the crossing.
R. W. Routon, sworn for the defendant, testified that he was a switchman and had been for about 14 years and was in the cab of the switch engine in question on the morning of the collision; that the collision occurred on a fair day; that the engineer gave a crossing signal with a horn; that the bell was ringing continuously before and after the collision that as they approached the crossing the train was approaching 12 or 15 miles an hour before the brakes were applied; that he was looking down the track to see both sides; that as the crossing was approached there was no traffic at all on the crossing; that they were almost on the crossing before they had any indication that the driver of the tractor was going onto the crossing and that he turned in front of the engine and that it looked like the driver of the trailer picked up speed as he got onto the crossing; that the trailer driver said he didn't see the engine; that there was nothing to obstruct the witness's view or the view of anyone in the cab from seeing the crossing or any vehicular traffic on the crossing. On cross-examination he testified that he was familiar with the crossing and that there was no signaling device or watchman at the crossing.
A. M. Hand, sworn for the defendant, testified that he is a switchman and that he was in the cab of the engine at the time of the collision; that the crossing was in plain view and that proper signals were being given as they approached the crossing; that they were running 12 to 14 miles per hour at the time; he testified, as did the other witnesses, that they saw the trailer on the road parallel to the railroad tracks for some time and that he apparently was headed straight and gave no indication that he was going to make a turn onto the crossing. On cross-examination he testified that the trailer proceeded approximately 28 feet before it stopped; that when it stopped it was on another track two tracks over; that the trailer went under its own power; that the trailer was not standing still when hit but was going as fast or faster than the engine was traveling. He reiterated practically all of the testimony of the other members of the crew.
L. M. Knowland, sworn for the defendant, testified that he was a fireman on the engine in question on the day of the collision; that the way was clear on the crossing and that when they first saw the trailer, having no indication that the trailer was going to make the turn onto the crossing, the engine didn't stop in time to avoid hitting the trailer. On cross-examination he testified that the engine was traveling between 15 and 20 miles per hour before approaching the crossing and that the emergency brakes were applied from 20 to 25 feet away from the crossing.
R. C. Paschal, sworn for the plaintiff, and called as a witness in rebuttal, testified that he is a police officer in the City of Atlanta and had occasion to investigate the collision, arriving about five minutes after he received the call at 10:18 a. m.; that he didn't see the impact; that his report showed that all parties were present and that the engineer of the train stated that he thought the trailer was going on across the crossing but that he stopped, leaving the back end of the trailer on the tracks. On cross-examination he testified that the driver of the trailer stated that he intended to make a right turn after leaving the crossing but the traffic stopped him from making the turn when the rear end of the trailer was on the tracks.
Originally there were several assignments of error but there is only one assignment of error insisted on before this court and that is as to an excerpt from the charge of the court as follows: "By statute in this State, proof of injury by a locomotive or other vehicle being operated for hire raises the presumption that the operator was wanting in ordinary care and constitutes prima facie evidence of want of reasonable skill and care on the part of such operator. Proof of injury is sufficient to authorize a recovery by the plaintiff, nothing else appearing. However, if you find from the evidence adduced upon the trial that the servants of this defendant were free from negligence, that would raise an issue for you to determine. Such evidence would shift the burden of proof from the defendant back to the plaintiff. Whether the evidence justifies a finding that the defendants were wanting in due care and failed to employ reasonable skill in the operation of the locomotive is a question of fact for your determination."
Prior to 1929 (Ga. L. 1929, p. 315; Code § 94-1108), it was the law in this State that when damage was occasioned by the operation of common carriers (locomotives, etc.), all the plaintiff had to do to make out a case for recovery was to prove that the damage was occasioned by the operation of such common carrier. In Western Atlantic R. Co. v. Henderson, 279 U.S. 639 ( 49 Sup. Ct. 445, 73 L. ed. 884), it was held that such provision was unconstitutional. The law as now prevails in this State is to this effect, that when it is proved that the damage was occasioned because of the operation of trains, the presumption arises that the railroad company is liable, but the railroad company may rebut this presumption by introducing evidence to show that it was not liable. That is what is known to our law as the shifting of the burden of procedure from the plaintiff to the railroad company. It is generally known to our law as the shifting of the burden of evidence. If the plaintiff sets up in the petition other allegations of negligence than the mere fact that the damage was occasioned by other acts of negligence of the defendant than the operation of its trains, the defendant must in some way put up evidence in its behalf to show that the defendant is not liable for any reason which it may show. Among those reasons is that even though the defendant was guilty in some manner or other of the acts of negligence alleged by the plaintiff, nevertheless the plaintiff would not be entitled to recover, because by the exercise of ordinary care he could have avoided the negligence of the defendant. This substantially and briefly sets up the situation in the present case. There has been considerable said on this question of shifting the burden of procedure by both this court and the Supreme Court. We do not see any necessity or benefit to be derived from dealing with these cases separately.
We might state here that the burden of proof which rests with the plaintiff to prove his case remains with him throughout the trial and is never cast upon the defendant except in certain specified instances. We will not deal with all of them but as illustrative of what we mean to say here, it is similar to a situation where the defendant admits a prima facie case and assumes the burden of proof. In the instant case the defendant never admitted a prima facie case, thus relieving it of having throughout the trial any such burden.
In the instant case it can hardly be said with any degree of persuasion that the charge here complained of is not erroneous. See in this connection Atlantic Coast Line R. Co. v. Thomas, 83 Ga. App. 477, 485 ( 64 S.E.2d 301), in which this court went fully into this question and in reversing the case said: "It cannot safely be said in the present instance that in its context the words `burden of proof' meant burden of evidence and that it did not mislead the jury." See also to the same effect Atlantic Coast Line R. Co. v. Rowe, 83 Ga. App. 733 ( 64 S.E.2d 689) and Neville v. National Life c. Co., 36 Ga. App. 8 ( 135 S.E. 315. It will be noted in the excerpt from the charge complained of that the court stated that the burden shifted from the defendant to the plaintiff. We cannot say that the jury might not have inferred that the burden of proof in the case was at that time on the defendant. If it were not on the defendant it could not shift from it back to the plaintiff. It had never shifted in the instant case to the defendant. The burden of procedure or the burden of introducing evidence was all that could shift back to the plaintiff. The plaintiff in support of his contention that the instant case should be affirmed calls to our attention Georgia, Southern Florida R. Co. v. Wilson, 93 Ga. App. 94 ( 91 S.E.2d 71). We have carefully studied this case in which the writer participated and we find nothing that would justify us in affirming the instant case. Counsel also cite Atlantic Coast Line R. Co. v. Carver, 81 Ga. App. 26 ( 57 S.E.2d 692). In that case this court did not hold that the burden of proof shifted from the defendant to the plaintiff but simply held that the burden of producing evidence was upon the defendant. Headnote 1 of that decision reads: "The prima facie presumption of want of reasonable skill and care on the part of the servants of railroad companies which arises upon proof of injury inflicted by the running of their locomotives or cars disappears upon the introduction of some evidence showing absence of such negligence. The burden of proof then shifts to the plaintiff to show such negligence as will authorize recovery. See Code § 94-1108; Jones v. Powell, 71 Ga. App. 202 ( 30 S.E.2d 446)."
Counsel for the plaintiff call our attention to McKemie v. McKemie, 76 Ga. App. 212, 214 ( 45 S.E.2d 456), wherein it is said: "In Hawkins v. Davie, 136 Ga. 550, 551 ( 71 S.E. 873), it is said: `The use of the expression "burden of proof" in a dual sense, sometimes as indicating the burden of establishing the case as a whole, and sometimes as indicating the burden of the evidence during the progress of the trial, or that certain evidence will make out a prima facie case or will serve prima facie to establish a given fact, if not rebutted, has created no little confusion.'
"It is evidence that the expression `burden of proof' as used in the italicized excerpt of the above-quoted charge was used in one of the dual senses referred to in the Hawkins case, supra, as indicating the `burden of evidence' for the judge in his charge had immediately preceded this expression, `burden of proof', with the instruction that certain evidence will make out a prima facie case. This expression, according to the Hawkins case, supra, is another dual expression used in the sense of `burden of evidence.' The meaning of these two expressions is made plain by their context, and we think they were not misconstrued and were not calculated to mislead the jury as to what the true law is as contended by the defendant." In studying that case we find that it is merely stated that the burden of proof as applied to the facts of a given case under its facts has a dual meaning. One of those meanings applies to the ultimate burden of proof which rests with the plaintiff from the beginning throughout the trial of the case. The other dual meaning applies where the burden of procedure or burden of introducing evidence shifts from one party to the other. When we analyze it from this view-point, and we must do so under the facts of that case, it ceases to present any complicated question. Our attention is called to Allied Egg Poultry Co. v. Jocie Motor Lines, 91 Ga. App. 725 ( 87 S.E.2d 172). A study of the facts in that case does not require reversal in the instant case. We wish to call attention to Department of Revenue v. Stewart, 67 Ga. App. 281 (4) ( 20 S.E.2d 40) wherein this court said: "The term `burden of proof' has a dual meaning: (a) Generally, the burden of proof rests where the pleadings place it; this is recognized as the burden of pleadings, and remains thus placed throughout the trial. (b) The burden of testimony or evidence is shifting, and, during the progress of a trial may alternately shift on facts or issues from one party to the other. As to the burden of pleadings, the trial court has no discretion; it is a matter of law. As to the burden of testimony or evidence, he has a discretion to determine whether or not the evidence produced, together with attending rules of presumption and procedure, under the particular case, has shifted it."
The court erred in overruling the defendant's amended motion for new trial.
Judgment reversed. townsend and Carlisle, JJ., concur.