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Tort; automobile and train collision. Before Judge Manning. Cobb Superior Court. December 19, 1956.
1. The grant or refusal of motions for mistrial is largely within the discretion of the trial court, and this discretion will not be interfered with unless manifestly abused; and, where the trial court immediately upon the happening of an irregularity gives cautionary instructions to the jury, this court will not disturb the trial court's judgment refusing a motion for mistrial.
3. The extent and scope of cross-examination is not unlimited, and it is within the discretion of the trial court to enforce such restrictions as are necessary to prevent repetition of questions as to matters already fully developed on cross-examination.
4. The value of the opinion of a 12-year-old witness as to the speed of a train, which is based upon facts stated, and the sufficiency or insufficiency of these facts to authorize the opinion given, are matters to be determined by the jury.
5. The trial court's charge to the jury is not subject to any of the criticisms lodged against it in this ground.
6. In a suit for damages on account of personal injuries resulting from a tort, where the petition alleges that the ability of the plaintiff to earn money has been decreased, it is error for the trial court to charge the jury on this element of damages, unless there is some evidence on which the jury can base with reasonable certainty a finding as to the amount of such damages.
7. The general grounds are not now considered.
W. D. Hart brought an action for damages against the Western & Atlantic Railroad, a corporation of the State of Georgia, pursuant to an act of the General Assembly of Georgia, approved on November 30, 1915 (Ga. L., Ex. Sess., 1915, pp. 119, 127, 11). It is alleged that by virtue of the act of 1915, the Nashville, Chattanooga & St. Louis Railroad leased the Western & Atlantic Railroad from the State of Georgia, and subsequently subleased the use of its tracks through Cobb County to the Louisville & Nashville Railroad Company, and this latter company operating under such subleases at all times material to this action. The remaining material allegations of the petition are substantially as follows. The defendant has injured and damaged the plaintiff in the sum of $125,000. The injury and damage to the plaintiff occurred at approximately 8 a. m., on December 10, 1954, at a public railroad crossing located about 200 yards north of the city limits of the City of Acworth, Georgia, at what is known as the Lance Crossing in Cobb County. There is a public road known as Railroad Street running parallel with the railroad on the east and northeast side thereof in the vicinity of the crossing where the collision between the plaintiff's automobile and the defendant's train occurred. There is a public road running approximately at right angles from the west side of Railroad Street across the railroad to the public highway paralleling the railroad, known as the old U. S. Highway No. 41, now State Route No. 293, which is the crossing known as Lance Crossing. The area in the vicinity of this crossing is a thickly populated settlement, and a large number of people pass over the crossing at all hours of each day and night. The railroad has been running through this community for more than 100 years and the defendant had full knowledge of the uses being made of the crossing. On December 10, 1954, and for many years prior thereto, the defendant was and had been required to maintain the public railroad crossing and its ramps and approaches under the provisions of Code 94-503, 94-504, 94-505, and 94-506. On December 10, 1954, the defendant was not maintaining the crossing in such a manner that a traveler could get on and off the crossing safely and conveniently as required by law for the reasons that: (a) It was maintained at a height of approximately five feet above the level of Railroad Street, so that one traveling on Railroad Street and intending to turn in a westerly direction across the railroad is so much below the level of the railroad tracks and is so close to a curve in the railroad track to the south of the crossing (the curve being some 200 feet south of the crossing), that he cannot see the approach of a train from a southerly direction until he has proceeded up the ramp and the front of his car is so close to the tracks that the portion of an approaching train extending eastwardly upon the track will strike the front end of his automobile. The ramp leading from the street to the tracks is only some 30 feet in length, making a very steep incline. The ramp is so steep that after one has stopped, looked and listened, at the bottom of the ramp he has to accelerate the motor of his automobile sufficiently to pull up the ramp and thereby increase the noise of the motor of the car which makes it more difficult for him to hear; (b) the crossing was maintained at an approximate width of 15 feet, barely leaving
room for two cars to meet (a car being approximately six feet in width); (c) the railroad crossing was maintained at a height of some 15 feet above the level of the old U. S. Highway No. 41, now State Route No. 293, and the defendant maintained an approach ramp of approximately 94 feet in length, so that the drivers of cars attempting to cross the railroad could not see cars approaching from the opposite direction, and for that reason had to maintain a sharp lookout for cars that might pop up on the crossing from the opposite direction causing a collision between such automobiles on the crossing, and for this reason required a constant alertness and watchfulness on the part of such drivers to observe the approach of oncoming automobiles. There were many times more automobiles traversing the crossing from both directions than there were trains, so that the hazard of a collision with another automobile on the crossing was much greater than with an approaching train; (d) at the time of the collision, the crossing and the approaches thereto were defectively maintained by the defendant. The surface was not smooth but was rough and very irregular, and had holes in it that tended to pull automobiles out of their course of travel, making it necessary to watch for these holes in order to attempt to miss them, thus diverting the attention of drivers to the driving and making it more difficult to watch for approaching trains while traversing the crossing. The defendant knew of these conditions, and was bound, in the use of due care, under Code 94-506 (1) to maintain watchmen at the crossing at the time trains were approaching, or (2) to reduce the speed of approaching trains so as to avoid doing injury to any person or property which might be on the crossing and to permit travellers time to escape from the crossing to a place of safety on the approach of a train. The plaintiff's injury and damage occurred at this crossing and resulted from a collision between one of the defendant's north-bound freight trains, the name and number of which is unknown to the plaintiff but well known to the defendant, and the plaintiff's 1954 Dodge automobile. The plaintiff's home is located on the east side of Railroad Street about 125 yards north of Lance Crossing. At approximately 8 a. m., on December 10, 1954, he drove his automobile from his home in a southerly direction down Railroad Street, partially turned right to go westerly to the old U. S. Highway No. 41, then stopped at the railroad crossing sign at the bottom of the ramp on that street, looked and listened for the approach of a train, saw and heard none, completed his right turn, and then proceeded up the ramp to cross the railroad, and while he was traversing the railroad tracks the defendant's train "blazed" from a southerly direction into the plaintiff's automobile, striking the left front part of the left fender, slicing across the front end of the car, warping, twisting and breaking it as it went, finally picking it up so as to turn it over completely and hurling it against a telephone pole located on the westerly side of Railroad Street, where the automobile came to rest. The automobile was hurled with such terrific force that both the rear axles were broken, the drive shaft was torn away from the motor, and the whole front end of the car, including the frame, was warped and bent partially to the right, breaking the motor from the frame and crushing the whole front end of the car so that the car is a total loss. The plaintiff's body was torn out of the automobile and hurled 76 feet through the air to a point on the easterly shoulder of the railroad bed, causing him to suffer serious enumerated injuries. Because of his injuries the plaintiff has suffered constant and almost unbearable pain since the date of the collision, and will continue to do so the rest of his life for which he is entitled to recover just and adequate compensation. The plaintiff was at the time of his injury an able-bodied man, 29 years of age. He had a life expectancy of 35 years, according to the Carlisle Mortality Table, and was capable of earning the sum of $4,576 per year, but because of his injury his earning capacity has been destroyed, and he is entitled to recover for the full value of his life. The plaintiff's medical and hospital expenses up to the present time total $2,604. In conjunction with the acts of negligence already stated, which contributed to the proximate cause of the plaintiff's injury and damage, the proximate cause of his injury and damage was the defendant's negligence in the following particulars: (a) In operating its train in its approach to the crossing at a speed so great (60 miles per hour) that it could not be checked or stopped in time to avoid striking the
plaintiff's automobile, in violation of Code 94-506; which constituted negligence per se; (b) in failing to have and maintain a watchman or a signaling device at the crossing to warn the plaintiff of the approach of the train; (c) in maintaining the crossing and its approaches in the negligent manner outlined above, which constituted negligence per se, being in violation of the aforementioned Code sections; (d) in failing to blow the whistle of the train loud and distinctly at a distance of 400 yards from the crossing as the train approached, in violation of Code 94-504 [Code (Ann. Supp) 94-506?], which constitutes negligence per se; and, (e) in striking and injuring the plaintiff.
The defendant in its answer denied the material allegations of the plaintiff's petition, and further answering alleged that no negligence on its part caused the plaintiff's injury, but that the plaintiff failed to use and exercise ordinary care at the time and place of which complaint is made and that in the exercise of ordinary care the plaintiff could have and should have discovered the train, and in the exercise of ordinary care the plaintiff thereafter could have and should have avoided the collision between the train and the automobile. Even if the defendant was negligent in any particular alleged in the plaintiff's petition, the plaintiff's negligence was equal to, or greater than, its negligence so as to bar a recovery. The defendant further answered that December 10, 1954, was a very cold morning, that there was ice and a heavy frost prior to 8 o'clock that morning; that the plaintiff had parked his automobile in the open the night before, and when he got into his car on the morning of December 10th, his windshield and windows were heavily coated with frost, and with his car doors shut and his windows up and frosted over, as was the windshield, except for a little "peep-hole" where the windshield wiper was trying to rub off the frost and ice, the plaintiff drove his automobile at a rapid, reckless rate of 40 miles per hour southwardly along Railroad Street as if he were going to continue southwardly on this road as he approached the railroad crossing in question. At this time and place, the plaintiff suddenly, carelessly, recklessly, and abruptly, without notice or warning of any kind or character to the train crew, swerved his automobile to the right and drove head on at a high rate of speed into the front end of the train, which was traveling northwardly and facing the plaintiff as he traveled southwardly on a road about 25 feet from the railroad tracks until he suddenly and abruptly turned right to cross the tracks and drove into and against the train.
Upon the trial the jury returned a verdict for the plaintiff in the amount of $25,000.
The defendant's motion for a new trial, based on the usual general grounds and six special grounds, was denied, and it has brought the present writ of error here to have that judgment reviewed.
1. In special ground 1 (numbered 4) of the motion for new trial, complaint is made of the trial court's refusal to grant a mistrial over the defendant's objection that counsel for the plaintiff had improperly referred in his argument to the jury to the dependency on the plaintiff of his wife and three children when such dependency had been expressly purged from the petition and there was no evidence of such dependency on the trial. "In all motions for mistrial, the grant of the motion 'is largely within the discretion of the trial judge, and this discretion will not be interfered with unless manifestly abused' [citing numerous cases]. Usually cautionary instructions to the jury by the judge . . . will suffice to cure irregularity and remove prejudice [citing numerous cases]." Grayhouse v. State, 65 Ga. App. 853, 855 (16 S. E. 2d 787); Malone Freight Lines v. Pridmore, 86 Ga. App. 578, 583 (71 S. E. 2d 877); Southern Ry. Co. v. Tudor, 46 Ga. App. 563 (21) (168 S. E. 98).
In the light of the foregoing cautionary instructions by the trial court to the jury, we think the trial court did not abuse its discretion in refusing the defendant's motion for a mistrial. 2. In special ground 2 (numbered 5) error is assigned upon the admission of the following evidence and the rulings thereon: "Q. Tell the jury how you felt? A. Well, my ribs gave me a lot of trouble and my head. (Mr. Welsch (attorney for defendant): If I recall, there is no allegation in this petition with reference to the broken ribs and there is no prayer for recovery by reason of broken ribs, and any information in regard to it, unless it is alleged, I object to it. The Court: Upon the matter of pain and suffering, I overrule the objection."
We think the court properly admitted this evidence on the question of pain and suffering, as it is alleged in the petition that "almost every part of plaintiff's body was broken and injured so that he suffered excruciating pain therefrom, and will continue to suffer great pain from the aforesaid injuries the rest of his life."
3. In special ground 3 (numbered 6) complaint is made that the following questions, answers, and ruling of the court, while the plaintiff was on cross-examination, deprived the defendant of a thorough and sifting cross-examination and the trial court's ruling constituted an intimation of opinion: "I don't know how fast I was traveling when I started pulling off there; I never have paid any attention to that, but it was very slow; you can't travel that ramp fast, because it has got ruts in it. The ramp is holey and rutty there, and you have to approach the crossing at a very slow speed, if you don't you may turn into a car coming over the ramp and have a head-on collision. Q. Regardless of the condition there, I asked you the simple question, how fast or how slow you were driving; did you understand that question? A. Yes, sir. Q. I asked you did you have in your judgment an estimate as to how fast, or how slow--Do you or not? A. Well, I have never noticed a speedometer going over there, but very slow. Q. Well, that is too indefinite for me; give us some idea as to what it was; you were the driver of the car? Mr. Ingram (attorney for plaintiff): He has already told him that he doesn't know. The Court: I sustain the objection. Mr. Welsch: Do I understand your ruling--The Court: He said it twice, and don't argue with him; you can't argue with a witness; you can ask him that, but don't argue with him. It takes up a lot of time. If you want to show a previous contradictory statement you can ask him about that and the time and place, but he said he didn't know."
"The right of a thorough and sifting cross-examination belongs to every party as to the witnesses called against him. The extent and scope of such cross-examination is not unlimited. It is within the discretion of the trial court to enforce such restrictions as are necessary to prevent the repetition of questions as to matters already fully developed on cross-examination." Simmons v. State, 72 Ga. App. 16 (3) (32 S. E. 2d 842), and citation.
The plaintiff had twice answered on cross-examination the question of counsel for the defendant, stating that he did not know at what speed he had proceeded up the ramp to the railroad track at the time of the collision; and, we think the trial court in restricting the cross-examination upon this point, which had already been fully covered, cannot be held to have intimated an opinion as to what had or had not been proved. See, in this connection, Herndon v. State, 45 Ga. App. 360, 361 (4) (164 S. E. 478); Daniels v. Avery, 167 Ga. 54 (3c) (145 S. E. 45). There is no merit in this ground.
4. In special ground 4 (numbered 7) error is assigned by the defendant upon the trial court's overruling its objections to the qualifications of a 12-year-old witness to give an estimate of the speed of the train, and upon the trial court's refusal to strike from the evidence, both from the direct examination and the cross-examination, her estimate that the train was going 60 miles per hour.
"The value of the opinion given . . . as to the speed of the train . . based upon the facts . . . stated, or the sufficiency or insufficiency of these facts to authorize the opinion given by the witness, was a matter to be determined by the jury; and the court did not err in admitting the testimony." Lamb v. Sewell, 20 Ga. App. 250 (1) (92 S. E. 1011). Nor did the trial court err in permitting the witness to give her estimate of the speed of the train after she had stated the facts upon which she based her estimate. Code 38-1708. There is no merit in this ground.
5. Viewed in the light of the trial court's charge to the jury as a whole, the extracts in special ground 5 (numbered 8) are not subject to any of the criticisms lodged against them. The plaintiff in his petition charged the defendant with violating Code 94-503, 94-504, 94-505 and 94-506. The case went to trial without the defendant's demurring to the petition, and the trial court charged each of the Code sections mentioned above. The fact that the trial court in its charge referred to Code 94-504 as dealing with the Blow Post Law, when it should have referred to Code 94-506, could not have confused the jury, as the court charged the language of these sections. The fact that the plaintiff charged in his petition that a violation of Code 94-506 with reference to the speed of the train was negligence per se, and the trial court gave this contention in charge to the jury could not have harmed the defendant as the trial court in its charge instructed the jury: "I charge you there is no law in this State regulating the speed of trains approaching public crossings, and the law as to trains approaching public crossings is set out in the language of Code 94-506 which I have read to you." The defects in the plaintiff's pleadings should have been taken advantage of by demurrer and not by motion for new trial.
6. In his petition the plaintiff alleged that he was at the time of his injuries an able-bodied man, 29 years of age; he had a life expectancy of 35 years, according to the Carlisle Mortality Tables; he was earning and capable of earning the sum of $4,576 per year, but because of his injuries his earning capacity has been destroyed, and he is entitled to recover for the full value of his life. He further alleged that he was earning $88 per week at the time of his injury, and that because of the injuries, he will be unable to work in the future. In special ground 6 (numbered 9), error is assigned on the following excerpts from the court's charge to the jury: "The plaintiff also alleges that he has suffered a diminution of earning capacity; that is, that his power and ability to earn money has been diminished by reason of his alleged injury, that his capacity to labor and earn money has been destroyed or materially decreased by his injuries, as alleged. He alleges that his earning capacity at the time alleged was $88 a week, and that by reason of this injury he will not be able to earn as much, and he seeks to recover at your hands for his alleged decreased earning capacity, whatever that may be shown to be. The jury would take into consideration the facts in the case and apply all of the rules of law given you in charge, and determine what amount of damages the plaintiff is entitled to recover, if he is entitled to recover at all. Now if you find that he is entitled to recover for loss of future earning ability, then you would consider the fact that people don't always work constantly, that there are times of unemployment, sometimes from illness, people are not able to work, sometimes they voluntarily abstain from work, and you will take those facts into consideration; and also the fact that if he recovers for diminished earning capacity that the money would be paid him in one lump sum, and that it would be worth more than if paid him as he earned it over a period of time, because he would be having the use and the interest on that money. And the legal rate of interest at this time for the use of money in Georgia, the maximum rate is seven percent per annum. Now, gentlemen, there has been introduced in evidence in this case certain tables known as mortality tables; and the jury may or may not use such tables as they see fit and if it is necessary to do so. The purpose of this table is to show the expectation in life of the average person of a given age as determined by the compilers of this table over a wide range of observation. The age you will observe is listed in the first column, and the expectation in years is found in the second column immediately opposite the age. It can not be assumed that the ordinary life of parties at this time was more than that of the average person. It is a question of fact, however, for the jury to determine, and the jury will look to the evidence, and consider the age of the party, his habits of life, state of health, and any other fact that would illustrate his probable expectation in life at this time. . . If you find for the plaintiff, you would not return separate items for pain and suffering, loss of earning capacity, doctor's bills, loss of time from work, but you would add all that up and put that in one amount, and let that be what you find, if you find for the plaintiff
in the way that I have instructed you."
In a suit for damages for personal injuries, it is error for the court to charge the jury on the right of the plaintiff to recover for a decreased earning capacity (loss of future earnings) where it appears from the evidence that the plaintiff at the time of the trial was making more in the same work at the time of the trial than at the time of his injuries. Atlanta Coca-Cola Bottling Co. v. Deal, 66 Ga. App. 211 (17 S. E. 2d 592), and the numerous cases there cited. See especially Rome Railway &c. Co. v. Duke, 26 Ga. App. 52 (105 S. E. 386).
7. As the case must be remanded for a new trial because of the error pointed out in Division 6 of this opinion, the general grounds are not considered at this time.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
J. B. White, Jere F. White, Ingram & Tull, William A. Ingram, contra.
Sam J. Welsch, John Sammons Bell, for plaintiff in error.
DECIDED MAY 24, 1957.
Saturday May 23 02:09 EDT

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