Opinion
33189.
DECIDED OCTOBER 19, 1950.
Action for damages; from Chattooga Superior Court — Judge Nichols. May 27, 1950.
Parker Clary, Maddox Maddox, for plaintiff.
Brinson Davis, Matthews, Owens Maddox, for defendant.
The court erred in overruling the plaintiff's motion for a new trial for the reasons stated in divisions nine, eleven, twelve and thirteen of the opinion.
DECIDED OCTOBER 19, 1950.
Mrs. Anna Mae Sherrill sued the Trustee in Bankruptcy of the Central of Georgia Railway Company for damages allegedly resulting from the negligence of the defendant whereby her husband was killed when the automobile being driven by him was driven into the side of an engine of the defendant being operated over a crossing over a street and highway in the City of Summerville, Georgia. The petition charged negligence per se in the following particulars: "(a) Said locomotive and train was being operated at a rate of speed in excess of 15 miles per hour within the corporate limits of the City of Summerville. (b) That while approaching said crossing on said Highway No. 27 and the railroad tracks of said defendant and within the corporate limits of the City of Summerville, the bell on said locomotive was not constantly tolled and was not ringing while approaching said crossing or while actually traversing the same. (c) That defendant's engineer did not exercise due care in so controlling the movements of said train as to avoid doing injury to persons who were on such crossings. (d) That defendant's engineer and agent did not reduce the speed of said locomotive and train so that the same might be stopped before reaching said crossing or striking a person thereon." It charged ordinary negligence in the following particulars: "(a) It did operate its locomotive and train while approaching said crossing at the high, rapid and dangerous rate of speed of fifty (50) miles per hour. (b) That said defendant and its engineer operating its locomotive and train failed to anticipate the presence of petitioner's said husband on said crossing. (c) That defendant and its said engineer failed to reduce the speed of said train at said crossing to such speed that the same could be controlled by said engineer and stopped if necessary to avoid doing injury to persons on said crossing." The petition was first amended, in substance as follows: that said crossing was in a thickly settled industrial and residential section just inside the City of Summerville; that the crossing was in much use by both the defendant and the public; that the crossing was on a well-traveled highway used by persons traveling from the Midwest into Georgia and Florida and by persons working in the industrial area in going to and from work; that several hundred, if not thousands, of motor vehicles pass over said crossing every twenty-four hours; that defendant was negligent under said circumstances in failing to have either a watchman or an automatic signal warning device at said crossing to warn persons of the approach of locomotives and trains on the tracks of the defendant about to go over the crossing and of the danger to them. The petition was amended the second time as follows: "(1). That the engineer in charge of and operating its engine to said train when said train approached the crossing and intersection of its tracks and said highway, and when 75 feet from said crossing saw the motor vehicle in which petitioner's said husband was riding and operating on said highway, and that said motor vehicle was 125 to 130 feet from said crossing at said time, and that said motor vehicle was not slowing down and apparently unaware of the approach of said train and his imminent danger, and that engineer failed to sound his whistle or give other warning of the approach of said train so as to attract the attention of said deceased. (2). She shows that said failure to blow said whistle or give other warning to attract the attention of the deceased and give warning of his imminent danger so that said deceased might have stopped said motor vehicle or diverted it away from said engine and crossing was negligence on the part of said defendant." The petition was demurred to generally and on several special grounds, one of which was to the effect that the petition showed on its face that the train reached the crossing before the plaintiff's husband reached it and that the train was using the crossing at the time the plaintiff's husband ran into the side of it. The demurrers to the petition as first amended were overruled. The defendant charged the deceased husband with the following acts of negligence: "(a) Approaching said railroad crossing at a rate of speed in excess of forty miles per hour. (b) In not reducing the speed of said automobile as he approached said railroad crossing. (c) In not keeping a lookout ahead and observing said train which was using said crossing before he reached the same. (d) In not having his said motor vehicle under control as he approached said railroad crossing. (e) In violating an ordinance of the City of Summerville limiting the speed of motor vehicles to twenty-five miles per hour; and, (f) In otherwise not exercising ordinary care in approaching said railroad crossing." The jury found for the defendant and the plaintiff excepts to the overruling of her motion for a new trial as amended.
1. A ground of an amended motion for a new trial which requires an examination of the brief of evidence to ascertain whether or not the assignment of error is meritorious is incomplete and will not be considered.
2. As the case is reversed on other grounds, the assignments of error in grounds two, three and six with respect to the court's sufficiently stating to the jury the contentions of the plaintiff and related matters need not be passed on.
3. The fourth ground of the amended motion for a new trial contains an exception to the charge to the effect that in order for the plaintiff to be entitled to recover she must prove her case as to the issues involved by a preponderance of the evidence. This exception is based on certain rulings of this court and the Supreme Court. The first such ruling was made by the Supreme Court in Killian v. Ga. R. Bkg. Co., 97 Ga. 727 (3) ( 25 S.E. 384). It was followed in Murphy v. Ga. Ry. Power Co., 146 Ga. 297 (1) ( 91 S.E. 108), and Lime-Cola Bottling Co. v. A. W. P. R. Co., 34 Ga. App. 103 (4) ( 128 S.E. 226). These rulings were to the effect that, in a case where the injury complained of is caused by the running of a defendant's cars, it is not incumbent to prove the allegations of the negligence of the defendant by a preponderance of the evidence. In our opinion this ruling means no more than that all the plaintiff in such a case has to prove to make out a prima facie case is to show injury by the running of the defendant's cars. The rulings were made before the cases of Gainesville Midland R. Co. v. Floyd, 73 Ga. App. 661 ( 37 S.E.2d 725), and Seaboard Air-Line Ry. Co. v. Fountain, 173 Ga. 593 ( 160 S.E. 789). It is now the rule that upon proof of injury by the running of cars, if the defendant introduces evidence from which a jury would be authorized to find that the injury did not so occur or that if it did it was not due to the negligence of the defendant, the burden of proof would be upon the plaintiff to prove one or more of the allegations of negligence to be the proximate cause of the injuries by a preponderance of the evidence. Speaking for himself alone, the author of this opinion is inclined to believe that the rulings to the effect that it was not incumbent on the plaintiff to prove the allegations of negligence when the injury was from the running of cars went too far, for the reason that the burden of proof is on the plaintiff in any case to make out a case by a preponderance of the evidence and, where proof of injury by running of cars is made, the plaintiff prima facie has carried the burden of proving the alleged act or acts of negligence alleged against the defendant by reason of the prima facie presumption attaching upon the proof of such injury. When the presumption vanishes by reason of the defendant's evidence, the benefits of the presumption vanish and the original burden of the plaintiff reattaches. It is unquestionably true now that when the plaintiff has lost the benefit of the presumption by reason of the defendant's evidence, it is not error for the court to charge that the burden of proof is on the plaintiff to prove one or more of the allegations of negligence by a preponderance of the evidence and, of course, that it or they were the proximate cause of the injury sued for.
4. The court, in its charge on the subject of preponderance of the evidence, omitted the charge that the jury might also consider the personal credibility of the witnesses so far as the same might legitimately appear on the trial. Whether or not this omission was error requiring the grant of a new trial need not be decided, as the omission will not likely occur on another trial, if such charge is required under the facts on the next trial.
5. There is no merit in the assignment of error in ground seven of the amended motion.
6. As the alleged error in the charge, complained of in grounds eight and nine, will not likely occur on another trial no ruling will be made on these grounds.
7. In ground ten the following charge is complained of: "I charge you that if you should find under the evidence and rules of law I give you in charge that the defendant was negligent and that the plaintiff could have avoided the consequences, that is, the plaintiff's husband could have avoided the consequences of defendant's negligence after it was apparent or should reasonably have been apprehended by him by the exercise of ordinary care and diligence, the plaintiff would not be entitled to a verdict against the defendant." The complaint is that the use of the word "should" before the words "reasonably have been apprehended" placed upon movant's husband a greater burden than is fixed by law and that " could" should have been used instead of "should." We do not think that this charge was error. The use of the word "should" placed upon the deceased only the duty of exercising ordinary care to discover and avoid the negligence of the defendant. Surely no jury would think that he should have discovered or avoided the defendant's negligence when it was impossible for him to do so.
8. The ruling in division seven applies to the exception to the charge made in ground eleven which is the same exception as made in ground ten.
9. The court erred in charging the jury on the subject of accident. Under the evidence, accident was not involved in the case. The death was due either to the negligence of the defendant, of the plaintiff's husband, or to the negligence of both combined.
10. There is no merit in the assignment of error in ground thirteen.
11. In the fourteenth ground error is assigned on the following charge: "I charge you that where a street or highway crosses a railroad track the railway company and travelers on the highway have equal rights to the use of the crossing, provided, however, that the one first entering upon and undertaking to use the crossing has the prior right to the use thereof." This charge was error for the reason that, as a matter of law, the one first entering upon and undertaking to use a crossing does not, in all cases and all circumstances, have the prior right to the use of it. Pollard v. Roberson, 61 Ga. App. 468 ( 6 S.E.2d, 203). Whether, as a matter of fact, the one first entering has the prior right is a question of fact for a jury, unless the facts so clearly show that such is or is not the case. In this case both the plaintiff's husband and the defendant were guilty of at least one act of negligence, that of violating the city ordinance, and it was a jury question under all the evidence, including the photographs which were introduced in evidence and not made a part of the brief of evidence.
12. The ruling in division eleven applies to an identical exception made in ground fifteen.
13. Ground sixteen assigns error on the following charge: "I charge you that it was the duty of Walter Lee Sherrill, as he approached the crossing, to use his sense of sight and hearing to ascertain whether the crossing was occupied or was about to be occupied at the time by a train, so if you find under the evidence that he saw, or in the exercise of ordinary care he could have or should have seen or known that the train was on or near the crossing and could have stopped or avoided running into the train, you should find for the defendant. The rule applies not only to what he actually saw but to what he could have seen in the exercise of ordinary care." This charge was error. Pollard v. Roberson, supra; Richmond Danville R. Co. v. Howard, 79 Ga. 44 (3) ( 3 S.E. 426); Atlanta West Point R. Co. v. Hudson, 123 Ga. 108 ( 51 S.E. 29); Atlanta West Point R. Co. v. Wise, 190 Ga. 254 ( 9 S.E.2d 63).
14. Grounds seventeen and eighteen assign error on the court's failure to charge Code § 94-1108 or the principle therein set forth. There is no merit in these grounds for the reason stated in division three of the opinion, based on the authorities therein cited.
No ruling is made on the general grounds.
The court erred in overruling the motion for a new trial.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.