Opinion
31842.
DECIDED FEBRUARY 19, 1948. REHEARING DENIED MARCH 18, 1948.
Action for damages; from Fulton Superior Court — Judge Andrews. September 29, 1947.
Ezra E. Phillips, for plaintiffs in error.
Powell, Goldstein, Frazer Murphy, James K. Rankin, contra.
1. Unless there is no conflict in the evidence, and unless that introduced, with all reasonable deductions and inferences therefrom, shall demand a particular verdict, it is error for the court to direct a verdict.
2. The inference of negligence created by proof of injury inflicted by a railroad company in the running of its locomotives and cars is at an end when the company produces evidence to the contrary, and the question of negligence or no negligence is to be decided from the facts of the case.
3. Circumstantial evidence is sufficient to authorize a verdict in a civil case where it reasonably establishes the theory relied on, and preponderates to that theory rather than to any other reasonable hypothesis; but such evidence need not be inconsistent with all other reasonable theories beyond a reasonable doubt or to the point of logical demonstration.
4. Whether the evidence preponderated in favor of the plaintiffs' theory, rather than to some other reasonable theory, and whether the defendant was negligent in any of the ways claimed by the plaintiffs, and whether such negligence was the proximate cause of the death of the deceased, were questions which should have been submitted to the jury, and the court erred in directing a verdict for the defendant.
DECIDED FEBRUARY 19, 1948. REHEARING DENIED MARCH 18, 1948.
Wiley James Dodd Jr. and Merrill Dodd, minor children of Wiley James Dodd Sr., by their mother as next friend, sued M. P. Callaway as trustee of and for the Central of Georgia Railway Company, a common carrier of freight and passengers, claiming damages for the alleged negligent homicide of their father.
The plaintiffs alleged that the defendant, in operating a locomotive negligently and without due caution and circumspection, over Humphries Street grade crossing in the City of Atlanta, between 8 and 9:30 p. m. on January 23, 1944, ran over and inflicted mortal wounds upon their father, from which he died. Several acts of negligence were charged to the defendant. It was alleged: that the defendant permitted a fence to be maintained near said crossing and its main-line track, which obstructed the view of persons approaching the crossing and the view of employees operating trains of the defendant at and near the crossing; that the crossing was in a congested area where there were a number of tracks over which switch engines and locomotives constantly moved at all hours and at irregular intervals, while Peters Street nearby was constantly filled with motor-vehicle traffic, producing a medley of sound and noise, and after nightfall there was in said vicinity a confusion of lights, making it impossible for persons to distinguish lights of locomotives from other lights; that the defendant maintained said crossing unguarded and unmarked, without a flagman or watchman and without any automatic gates or signaling devices or other warning, in violation of ordinances of the City of Atlanta and orders of the Public Service Commission of the State of Georgia; and that the locomotive was operated upon said crossing at a speed of more than 10 miles per hour, in violation of a city ordinance, and without the employees keeping a vigilant and constant lookout along the track ahead. These were substantially the allegations of negligence charged to the defendant.
The defendant denied all negligence on its part and alleged: that the crossing involved was an open crossing; that it was protected by a standard cross-arms signal located on the Peters Street side; that the movement of trains over the crossing could be seen from the Whitehall or Peters Street side; that the cross-arms signal was in plain view of persons approaching the crossing from either side; that, if there was an accident as claimed by the plaintiffs, the decedent was not in the exercise of ordinary care at the time and place complained of; and that the alleged accident could have been avoided by the exercise of such care by the decedent.
The evidence for the plaintiffs tended to show: that the crossing on Humphries Street was a public grade crossing; that the deceased, who was the father of the plaintiffs, was found between 9:30 and 10 o'clock at night in a semiconscious condition, lying on the ground in or near the edge of the crossing, his body not lying straight, but "kind of up in a knot," or doubled up, at an angle to the track, with his feet near the defendant's railroad track on the Peters Street side of the crossing, and nearer the track than his head; that after being helped to his feet, he could not stand alone and slumped down and fell back against a fence; that he was placed in a police car and carried to Grady Hospital, where he died from his wounds a few hours later; that he was two or three feet from the used or traveled portion of Humphries Street up the track when found, his feet touching the crossties; that there was much blood on the ground, on the crossties, on the side of the outside rail, and on the hands and head of the deceased; that he had on his head a compound comminuted fracture, that is, it proceeded through the scalp and skull and crushed in the back part of his head, and also had multiple injuries over his body, several abrasions, scratches and bruises, but that the fracture on the head was the cause of his death; that the wound on the head was not produced by any kind of an instrument that could be wielded by hand; that the deceased was sober when last seen before his injuries, about 8 o'clock in the evening, about two blocks from the Humphries Street crossing, but apparently was in a drunken condition when he was injured; that he talked incoherently on the way to the hospital and made no statement as to how he was injured; that his face was dirty and his cap was bloody and greasy, and blood and cinders were matted in his hair, and there was blood on the shoulder of his overcoat, dried blood and dirt and cinders, and black used grease on the side of his face and head, and black-looking stuff on his shirt.
The evidence also tended to show: that there was a small office building at the Humphries Street crossing between the defendant's main-line railroad track and Peters Street, approximately 9 or 10 feet high and 12 or 14 feet long, said building being within 4 to 8 feet of the crossing, and there was a fence along the defendant's track between it and Peters Street, running right up to the crossing, with hardly enough room between the fence and the railroad rails for a person to walk there; that this building and fence tended to obstruct the view by an engineer or fireman on a locomotive of a person walking in front of such locomotive from behind said building or fence, unless such person was some distance ahead of the train; that the defendant did not maintain any gate, automatic bell, signal device, or blinker lights at the Humphries Street crossing, and kept no watchman there after 6 o'clock p. m.; that the defendant's train number 32 (the Southland) left the Terminal Station going south at 8:31 p. m., and the defendant's train number 94 (the Dixie Flyer) left at 9:17 p. m., Atlanta time; and that these were the only two trains going south over said crossing between the time the deceased was last seen before he was injured and the time he was found by the side of the tracks in his injured condition, although other trains left Atlanta over the same tracks earlier and later the same evening.
Ordinances of the City of Atlanta — providing that "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," and providing that "No train shall be run across any grade crossing where adequate provision, as herein required, has not been made for the protection of human life," and limiting the speed of all trains over grade crossings in the city to ten miles per hour — were put in evidence by the plaintiffs.
The defendant introduced evidence by the engine crews of its two trains, the Southland and the Dixie Flyer, to the effect that on the night in question both of said trains were properly operated as they left the Terminal Station in Atlanta, and that no person was hit or injured by either of said trains at the Humphries Street crossing or anywhere else that night. Both engineers and both firemen testified that each of their respective trains was running "about ten miles an hour" as they approached the Humphries Street crossing, that the bell on each engine was ringing, that the headlights were burning, and that the whistles were blown for all crossings, including the one at Humphries Street.
The court directed a verdict in favor of the defendant. The plaintiffs filed a motion for new trial on the general grounds. It was amended by the addition of one special ground, complaining of the direction of a verdict for the defendant. The overruling of the plaintiffs' motion for new trial as amended is excepted to, but the only ground of alleged error insisted upon is the ruling directing the verdict.
1. "No principle is better settled in Georgia than that a verdict should not be directed, unless there is no issue of fact; or unless the proved facts, viewed from every possible legal point of view, can sustain no other finding than that directed. . . The paramount right of the jury to decide any issue of fact in every case, in Georgia, is absolutely exclusive of any such prerogative on the part of the judge. The exercise of this power by the jury, unless waived by the parties, is an indispensable requisite of a legal trial in this State, and an invasion of this right (as has been held by our Supreme Court times without number) demands the grant of another trial." Thus spoke Judge Russell in Davis v. Kirkland, 1 Ga. App. 5, 8, 9 ( 58 S.E. 209). It is true that the Code authorizes verdicts to be directed. "Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto." Code, § 110-104. The history of this section is interesting. It is not a statute but is a codification of language used in Hooks v. Frick, 75 Ga. 715. It originated in affirmances of verdicts in cases where the finding was so absolutely required, under the facts in those particular cases, that the error in directing the verdict was held to be harmless. Although a court "may" direct a verdict under the circumstances stated, our courts have universally held that the refusal to direct a verdict is never error in any case.
2. "In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such companies shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the companies in reference to such injury." Code, § 94-1108. It has been held several times that "the inference created by proof of injury by running of the defendant's cars is at an end when the defendant has produced some evidence to the contrary;" and "the statute has served its purpose when it compels the railroad to explain how the injury occurred, and the question of negligence or no negligence is to be decided by the facts of the case." Parrish v. Southwestern Railroad Co., 57 Ga. App. 847 ( 197 S.E. 66), and citations; Jones v. Powell, 71 Ga. App. 202 ( 30 S.E.2d 446). The plaintiffs undertook to prove some of the material allegations of their petition, including the way in which the deceased was killed, by circumstantial evidence. If the evidence offered by the plaintiffs, although circumstantial, was sufficient to authorize the inference that the deceased was killed by the operation of a train of the defendant, as was held by this court in Slaton v. Southern Ry. Co., 45 Ga. App. 781 ( 165 S.E. 883), the plaintiffs had the benefit of the prima facie presumption of want of reasonable skill and care afforded by the statute, in the absence of evidence to the contrary produced by the defendant. But the defendant offered testimony tending to rebut any inference raised by the evidence that its train killed the deceased. If it may be said that an inference of the want of reasonable skill and care on the part of the defendant was created by the statute upon the plaintiffs' proof tending to show the killing of the deceased by the defendant, and that such inference ended when the defendant produced its evidence, this left the plaintiffs without the benefit of the presumption but did not necessarily cause the case to fall entirely. Under these circumstances, the question of negligence or no negligence is to be decided by all of the facts of the case.
3. Circumstantial evidence is sufficient to sustain a verdict in a civil case where it reasonably establishes the theory relied on, and preponderates to that theory rather than to any other reasonable hypothesis ( Georgia Ry. Electric Co. v. Harris, 1 Ga. App. 714, 57 S.E. 1076); but such evidence need not be inconsistent with all other reasonable theories beyond a reasonable doubt or to the point of logical demonstration. Radcliffe v. Maddox, 45 Ga. App. 676, 682 ( 165 S.E. 841). A fact can be proved by circumstantial evidence as well as by direct proof, and physical facts and circumstances may be sufficient to authorize the jury to disbelieve the witnesses offered by a party and thereby impeach them. Atlanta Birmingham Ry. Co. v. Clute, 3 Ga. App. 508 ( 60 S.E. 277). "The physical facts and circumstances alone in the case may afford proof of the defendant's negligence, and may be such as to raise an issue of credibility for determination by the jury, notwithstanding the defendant's witnesses, to rebut the presumption of negligence, may have testified as to their exercise of ordinary care and that the casualty was unavoidable." Atlantic Coast Line R. Co. v. Paulk, 33 Ga. App. 293 ( 125 S.E. 865). A number of authorities cited by Judge Sutton in McRae v. Wilby, 59 Ga. App. 401, 410 ( 1 S.E.2d 77), show that the law clearly establishes the right of the jury to discredit direct and positive testimony if the circumstantial evidence can reasonably be said to be inconsistent therewith. That decision also quotes from Central of Georgia Ry. Co. v. Bagley, 121 Ga. 781 (4) ( 49 S.E. 780), that "the fact that a witness is an employee of one of the parties is a proper matter to be considered by the jury in passing upon his credibility." The only witnesses offered by the defendant were its employees and were the servants operating the trains alleged to have been negligently operated. We think that it was for the jury to say whether the circumstantial evidence as to the manner in which the deceased was killed was reasonably inconsistent with the testimony of the defendant's witnesses. Other cases illustrative of instances in which a plaintiff could recover for the negligence of a railroad, notwithstanding the testimony of its servants that they were in the exercise of ordinary care and were not negligent, include Western Atlantic R. Co. v. Clark, 2 Ga. App. 346 ( 58 S.E. 510), Central of Georgia Railway Co. v. Grace, 46 Ga. App. 101 ( 166 S.E. 684), and cases cited therein, and Pidcock v. Stripling, 66 Ga. App. 692 ( 19 S.E.2d 178).
The negligence charged to the defendant included the maintaining of the crossing in a congested area unguarded and unmarked, without a flagman or watchman, and without automatic gates or signal devices or other warning, in violation of ordinances of the City of Atlanta. These ordinances were introduced in evidence, and the testimony tended to establish these particular acts of alleged negligence. Other physical facts and circumstances were shown, which the jury may have been authorized to find constituted negligence on the part of the defendant. The evidence does not disclose what the deceased did or did not do, on the occasion in question, and he is presumed to have been in the exercise of ordinary care for his own safety, under the ruling in Collier v. Pollard, 60 Ga. App. 105, 109 ( 2 S.E.2d, 821).
Under the principles of law set out in the cases cited herein, we think that this case should have been submitted to the jury. Whether the evidence preponderated in favor of the theory that a train of the defendant inflicted the mortal wounds upon the deceased, as contended by the plaintiffs, rather than to some other reasonable theory, and whether the defendant was negligent in one or more of the ways claimed by the plaintiffs, and whether such negligence was the proximate cause of the death of the deceased, are questions which we think should have been submitted to the jury. Under this view of the case it was error to direct the verdict for the defendant, and the plaintiffs' motion for new trial should have been granted.
Pursuant to the act of the General Assembly, approved March 8, 1945, requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment reversed. Sutton, C. J., MacIntyre, P. J., and Townsend, J., concur. Felton and Gardner, JJ., dissent.
Assuming for the sake of argument that the evidence of the plaintiffs was sufficient to authorize the jury to find that the deceased was hit by one of defendant's trains on the crossing, the testimony of the employees who operated the only two trains of the defendant which could have struck the deceased showed that the engines of the trains they operated did not strike the deceased at the crossing. The testimony was consistent with various hypotheses where in the deceased could have been situated where he was without having been struck by an engine on the crossing, and the testimony of the witnesses was uncontradicted and the witnesses were in no way impeached. If there was a permissible inference of liability, it was conclusively overcome by the testimony of the defendant's employees. The only question in the case as I see it is whether the evidence authorized a finding that a train of the defendant struck the deceased at the crossing in such a way as to create liability. If it did, then the plaintiffs could travel on the statutory presumption. I do not think that the inference is authorized that the defendant's engine struck the deceased on the crossing. If the defendant's train did not strike the deceased on the crossing, it would not be liable; and if he was struck by a part of the train other than the front of the engine, I do not think that the defendant would be liable. I do not think that the defendant's evidence overcomes the presumption of negligence alleged. There was not enough evidence to give rise to the presumption. GARDNER, J., concurs in the dissent.