(b) It is reversible error for a trial court to refuse the defendant the right to argue before the jury the question of the plaintiff's contributory negligence for the purpose of diminishing the damages where the pleadings and the evidence reasonably support an inference that the plaintiff was contributorily negligent.
2. In an action brought under the Federal Employers' Liability Act the burden required of the plaintiff to show liability of the defendant is fulfilled sufficiently to demand a recovery for him in some amount when he offers uncontradicted proof that the defendant is negligent in any degree relating to the events which caused the plaintiff's injury.
3. The court erred in refusing to instruct the jury as requested.
4. The court did not err in refusing to charge the jury the requests as submitted.
5. Testimony as to the amount of money which the plaintiff received by reason of his retirement from the railroad was properly stricken by the trial judge.
6. The court erred in allowing in evidence the question and answer considered in this division of the opinion, as the witness was not shown to be qualified sufficiently to authorize him to express his opinion on the subject matter asked.
Cabe as plaintiff filed suit against the Southern Railway Company under the provisions of the Federal Employers' Liability Act.
The petition in relative substance alleged the following: That on or about December 8, 1958, plaintiff was employed by defendant as a yard foreman on one of its switch crews which was switching cars in and about Atlanta Terminal Station; that while in the process of building one of defendant's trains, plaintiff was riding a Pullman car in a southerly direction on track No. 5 in the Atlanta Terminal Station yards; that at the time track No. 5 lay adjacent to track No. 4, the latter being immediately to the east of the plaintiff as the car plaintiff was riding on moved along the track in a southerly direction; that immediately prior to the movement the plaintiff's crew had placed a car on track No. 4 in a previous switching operation; that the car being a part of the train which was located on track No. 4 and coupled into the train as a part thereof was in a position on track No. 4 so that the south end of the car was on a curve in that track; that at the point where the Pullman car was located on the curve on track No. 4, track No. 5 curved also to the west as the car on which plaintiff was riding proceeded in a southerly direction, causing the body of the car to swing to the left or east as it rounded the curve and moved along the track; that the tracks had been placed in the yards during approximately the year 1900 in accordance with the sizes and proportions of cars and engines which were manufactured at that time; that since approximately 1900 the tracks in the Atlanta Terminal Yards had not been relocated or changed to increase the width between tracks although cars which were manufactured for use by the defendant and other railroads had gradually increased in size from lengths of approximately 26 feet and widths of approximately 8 feet to lengths as great as 50 and 60 feet and widths as great as 11 feet; that at the time of the occurrence related the plaintiff was standing on the southeast stirrup of a Pullman car holding on to both grab irons with both his hands as the car was moved in a southerly direction along track No. 5 with his chest facing toward the car; that, as the foreman of the crew, the plaintiff's duty was to keep the lookout ahead as the train moved, and plaintiff was located in that position on the car for the purpose of "turning in" the air into the car; that while the plaintiff was keeping vigilant lookout ahead the car on which he was riding rounded the aforementioned curve on track No. 5 and the body of the car, unexpectedly, because of the length of same, it being approximately 60 feet long, swiveled on the trucks of the car and moved toward the parked car on track No. 4 crushing and mashing plaintiff between the cars as he stood in the stirrup; that the plaintiff was caught suddenly, unexpectedly and without warning and knowledge that the occurrence was about to take place, his back being towards the parked car, by reason of the fact that he was holding on to the grab irons with both hands and keeping a lookout toward the south; that by reason of the occurrence all
of plaintiff's chest, ribs and intestines were severely crushed and mashed and plaintiff was bruised, contused and lacerated over his entire back, chest, stomach and body; that by reason of plaintiff's injuries, plaintiff has been incapable of gainful activity since the date of the occurrence and he still suffers great physical and mental pain and agony in his chest, stomach and back, and all of his injuries are permanent in character; that defendant was negligent in (a) allowing the tracks in Atlanta Terminal Station Yard to remain located too close together to properly clear men on the south side of cars which were being moved in and about the tracks, (b) using and requiring plaintiff and its other employees to use in and about tracks and switches in and about the tracks, Pullman cars which exceeded the length of approximately 40 feet and which would not permit proper clearance in the yards, (c) in failing to furnish plaintiff at all times related with a reasonably safe place in which to work, (d) in failing to warn plaintiff that Pullman cars of the length of the parked Pullman car and the length of the Pullman car on which he was riding would not clear a man standing on the stirrup of the particular car when the two cars were passing on tracks Nos. 4 and 5 within the curve at the relative positions described.
At the trial the jury rendered a verdict for the plaintiff in the amount of $8,000.
Error is assigned on: the judgment of the trial court in denying the defendant's motion for new trial; the antecedent order sustaining plaintiff's objections to an interrogatory of the defendant; the judgment overruling the defendant's demurrers; and the denial of the defendant's motion for judgment notwithstanding the verdict.
This ground objects to the ruling by the trial court which precluded the defendant from arguing to the jury the question of the plaintiff's contributory negligence. By this argument the defendant undoubtedly had in mind to impress the jury so as to bring about a diminution in amount of damages which the jury otherwise might award the plaintiff. Under the pleadings and the evidence in this case, the law clearly accords the defendant the right to have made that attempt.
In rendering his ruling the trial judge referred to his previous direction of a verdict on the question of liability in favor of the plaintiff and against the defendant and stated that the direction ". . . would preclude any argument on the question of the negligence of the defendant, including the issue of contributory negligence on the part of the plaintiff, if those existed in the case."
Relevantly, it is provided in 45 U.S.C.A., 53, that: "In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee."
In addition to the clear language of the statute, it is well settled by the decisions delivered in most jurisdictions in actions under the Federal Employers' Liability Act, that the jury has the duty to pass upon the question of the defendant's negligence and plaintiff's contributory negligence and to diminish the damages in proportion to the amount the causal negligence of the plaintiff bore to the negligence attributable to both the plaintiff and the defendant. Buchanan v. Chicago & N. W. R. Co. (CCA, 7th Ct.), 159 F2d 576. And see the host of cases annotated under 45 U.S.C.A., 53, N 65.
The Federal Employers' Liability Act, 45 U.S.C.A., 51-60, deals with the liability of railroads to their employees for negligent injury and makes provision for jury trial. The essence of that mode of trial, the right of the jury to pass upon the facts, must be observed under the Act. See generally Brady v. South- ern R. Co., 320 U. S. 476 (64 SC 232, 88 LE 239); Wilkerson v. McCarthy, 336 U. S. 53 (69 SC 413, 93 LE 497); and Brown v. Western R. of Ala., 338 U. S. 294, 298 (70 SC 105, 94 LE 100). And see the numerous annotations in 45 U.S.C.A., 53, NN 154-164.
This principle of jury trial is deeply embedded in the Georgia law. It necessarily follows that if there is in this case any evidence upon which the jury could predicate any reasonable inference or hypothesis that the plaintiff was contributorily negligent in the events surrounding his injury, the denial of the right to make the argument was harmful to the defendant and constitutes reversible error. We think the evidence clearly warranted the inference and authorized the argument.
The petition alleges that the injury occurred while the petitioner was keeping a lookout ahead. The plaintiff testified that he was facing the direction in which the train was moving. This meant that the plaintiff was facing south as the petition alleges that the train was moving in a southerly direction. Plaintiff testified that he was looking down the tracks to his left and in the direction they were moving. It is also alleged that the plaintiff was standing on the southeast corner of the car; therefore, the plaintiff would have been standing on the left front corner of the car as it proceeded in a southerly direction. The plaintiff testified that track No. 4 on which the other car involved in the injury was parked was the track east of track No. 5 on which his car was traveling. The petition alleges that the stationary car, which allegedly crushed plaintiff between itself and the car plaintiff was riding, was to plaintiff's left or to the east of him on track No. 4.
From the evidence and the allegations of the petition, since the plaintiff was proceeding in a southerly direction and looking to his left in the direction his car was moving, it would be a most reasonable hypothesis for the jury to infer that the plaintiff could have seen or did see the car on the next track which allegedly crushed him, and from this to conclude that he was contributorily negligent.
The reasonableness of this hypothesis is strengthened by the allegations in the petition and the evidence to the effect that the two tracks involved at the place of the injury were curving to the right of the direction in which the car on which the plaintiff was riding was moving. From this it could be inferred justifiably that the stationary car on the track to plaintiff's left which knocked him from his perch would have loomed in the plaintiff's vision had he been looking ahead and down the track as he testified.
These combined factors of the pleadings and the evidence are sufficient for the jury reasonably to have based the hypothesis that the plaintiff, in some degree, was contributorily negligent.
The trial court erred in denying to the defendant the right accorded him by the law to argue to the jury the theory of the plaintiff's contributory negligence as it related to the question of diminution of damages. This error requires a reversal of the judgment denying the defendant's motion for new trial.
The complaint asserted in special ground 6 of the motion is based on the failure of the trial judge to charge on the question of the plaintiff's contributory negligence even in absence of a written request. The holding in this division obviously controls this ground. The trial court erred in failing to instruct the jury on the question of the plaintiff's contributory negligence as objected to in special ground 6.
2. In special ground 1 the defendant railroad urges as erroneous the direction of a verdict on the issue of liability in favor of the plaintiff and against the defendant.
The error committed by the trial judge in construing his direction of the verdict on liability as discussed in Division 1 does not comprehend necessarily that the court erred in the direction itself.
Coupling the clear language of the statute with the pronouncement in the Shed case, it is apparent that the burden required of the plaintiff to show the liability of the defendant is fulfilled sufficiently to demand a recovery for him in some amount when he offers uncontradicted proof that the defendant is negligent in any degree relating to the events which caused the plaintiff's injury. This is the status of the evidence in this case.
Bearing these principles in mind, the trial court did not err in directing a verdict in favor of the plaintiff and against the defendant on the question of liability.
We wish to make it plain that, on any retrial of the case, the trial court's direction of the verdict on liability cannot exclude the jury's consideration of the plaintiff's contributory negligence for the purpose of a possible diminution of damages nor can the direction of the court preclude on any retrial the admission of any evidence properly offered by the defendant which may tend to show contributory negligence on the part of plaintiff.
3. Special ground 3 objects to the failure of the trial court to give in its instructions to the jury a written request to charge. The request reads as follows: "I charge you, Gentlemen of the Jury, that in the absence of evidence to the contrary the defendant had the right to assume that plaintiff was a person of ordinary intelligence and that he was laboring under no physical defect or disability which rendered him incapable of appreciating his situation and of knowing the dangers incident thereto."
The request was adjusted to the issue bearing upon the contributory negligence of the defendant.
It presented a correct pronouncement of the law. Funk v. Seaboard Air Line R. Co. (USCA, 5th Cir.), 212 F2d 434, 435 (2); Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712
, 713 (1) (68 SE 483
); Thomas v. Georgia Granite Co., 140 Ga. 459
, 460-461 (79 SE 130
); Holcombe v. State, 5 Ga. App. 47
, 53-54 (4) (62 SE 647
); Gardner v. State, 81 Ga. 144 (4) (7 SE 144)
; Davis v. Central R., 60 Ga. 329
, 333; Annis v. Georgia Power Co., 42 Ga. App. 754
, 758 (157 SE 242
); Beasley v. Elder, 88 Ga. App. 419 (1) (76 SE2d 849)
4. Error is urged in special ground 4 on the failure to charge the following written request: "I charge you, Gentlemen of the Jury, that there rested upon plaintiff in this case a duty to exercise ordinary care for his own safety, ordinary care as applied to the plaintiff, as well as applied to defendant, being just such care as an ordinarily prudent person would exercise under the same or similar circumstances. The failure, if any, of the plaintiff to exercise ordinary care for his own safety would constitute negligence on his part."
The request as submitted does not present an accurate statement of the law. By the inclusion of the sentence fragment "as well as applied to defendant" in the first sentence of the request, the request is subject to the confusing inference that the plaintiff was under a duty to exercise ordinary care as applied to the defendant. This sentence fragment spoils what otherwise would have been a correct and applicable instruction in this case.
The court did not err in refusing to give the request as presented.
The written request to charge stated in special ground 5 of the motion for new trial was not adjusted to the evidence in the case, and the trial judge did not err in refusing to give it in his instructions.
5. Special ground 7 of the defendant's motion for new trial complains of the refusal of the trial court to allow in evidence the amount of the pension which the plaintiff was drawing by virtue of his retirement from the railroad. Error is also assigned on substantially the same ground to the court's sustaining the plaintiff's objections to an interrogatory directed to the plaintiff.
There was no error in the exclusion of this testimony nor in the sustaining of plaintiff's objections to the defendant's interrogatory.
In New York, New Haven & Hartford R. Co. v. Leary (USCA, 1st Cir.), 204 F2d 461, 467, 468 , it was stated that: "There was no prejudicial error in refusing to allow defendant to show that plaintiff was receiving disability pension from the United States Government under the Railroad Retirement Act which should be considered in mitigation of damages . . . The Railroad Retirement Act is substantially a Social Security Act for the employees of common carriers. The retirement fund is supported by tax collections from employer and employee . . . and to a limited extent by the general public . . . The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of the damages caused by the employer."
We do not think under the Georgia law the testimony would have been admissible for the purpose of permitting the defendant to argue the amount of the plaintiff's retirement benefits in mitigation of damages. Neither would it have been relevant to show an assuagement of any pain and suffering which plaintiff might have had by reason of his inability to do remunerative work after the injury. Nor would it have been admissible under the record in this case to show that the plaintiff had no incentive to work or whether he intended to work after retirement.
We think the problem is analogous to that discussed in the case of Wachtel v. Leonard, 45 Ga. App. 14 (163 SE 512), and other cases of like import.
6. Special ground 8 of the motion for new trial objects to the court's allowing in evidence over objection the following question and answer:
"A. Well, sir, as you would approach the car that was standing still, I don't think you would realize that it would be as close when you really got down to the center of it. I think it would give you the impression that you'd have room to clear it as you came through there, sir."
The objections to the evidence were that the witness's testimony constituted mere speculation, opinion, and conjecture without a proper foundation having been laid.
The question was propounded to the witness Lucas who had been qualified as an expert in the following particulars: He is a registered land surveyor and a registered professional engineer; he holds 3 degrees: Bachelor of Science in mechanical engineering, Bachelor of Science in civil engineering, and a Master of Science in civil engineering; he taught at Georgia Tech for 41 years and is now retired from the faculty; he is presently a consulting engineer; his consulting work is largely in the building profession, working on housing projects or similar buildings; he has worked for the State Highway Department and with the Ready-Mix Concrete people whom he helped to set up their plants, design their mixes, and regulate their controls.
Code 38-1710 states that: "The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses."
An expert can express an opinion on a matter "When the matter inquired about lies within the domain of the profession or calling which the witness pursues." Macon R. &c. Co. v. Mason, 123 Ga. 773, 779 (51 SE 569). Generally, nothing more is required to qualify an expert than that he has been educated in a particular trade or profession. This special knowledge may be derived from experience as well as study. Carter v. Marble Products, Inc., 179 Ga. 122 (1) (175 SE 480).
However, there is one basic reason why we think the evidence was improperly admitted. Succinctly stated, we do not think the witness was properly qualified as an expert on optical illusions so as to authorize him to state in evidence his opinion on the question asked.
In this modern day of specialized inquiry, the terms engineer, civil engineer, or surveyor cannot properly embrace expertise within the meaning of the law in every phase of science. The court cannot accord to those broad terms the requisite "study" and "experience" in every facet of knowledge or assume that every technical problem "lies within the domain" of those callings. There was nothing asked of Mr. Lucas in the questions qualifying him as an expert which showed him qualified to express an opinion on whether one riding on the southeast corner of a railroad car and approaching a stationary car on another track would have an impression that he could clear the car without injury to himself. Mr. Lucas did not show that he had seen or experienced for himself the approach of railroad cars in such a manner. He did not show that his education, teaching, or experience extended into this area of optical illusion. To the contrary, he expressly testified that he had not seen or experienced the event about which he testified and concerning which he voiced an opinion. "While expert witnesses may give their opinions as to facts, principles, and rules involved in the science in which they are learned, they are not, as to questions lying out of the domain of the science, art, or trade in which they are experts, exempt from the restriction of the rule which requires witnesses to state facts and not opinions." Hammond v. State, 156 Ga. 880 (2) (120 SE 539). Certainly, the mere facts that he had studied the plats of railroad tracks and had prepared scale copies of the railroad cars in question would not, in the absence of further explanation, show him to be competent to testify on the impression or illusion the approaching cars would give.
7. The court erred in refusing to allow the plaintiff to answer a question asked by the defendant as stated in special ground 9 of the motion for new trial. The question sought to elicit from the plaintiff evidence which might tend to show him as being contributorily negligent. For this purpose it was admissible. The foundation for the question was laid in the plaintiff's testimony which indicated that he realized the clearance was close.
8. The trial court did not err in overruling defendant's special demurrer and motion to strike, nor did the court err in overruling defendant's motion for judgment notwithstanding the verdict. The evidence did not demand a verdict for the defendant.
Judgment overruling defendant's motion for new trial reversed on special grounds 2, 3, 6, 8, and 9. Hall and Pannell, JJ., concur.