Opinion
45934.
SUBMITTED FEBRUARY 3, 1971.
DECIDED JUNE 8, 1971. REHEARING DENIED JUNE 24, 1971.
Action for damages. Camden Superior Court. Before Judge Flexer.
Nightingale, Liles Dennard, B. N. Nightingale, for appellants.
Harrison Laseter, Leon A. Wilson, II, for appellee.
1. (a) The general grounds of the motion for judgment n.o.v. and, in the alternative, for new trial, are without merit.
(b) Where a master and his servant are sued jointly for a tort committed by the servant, and the only negligence charged flows from actions or failure to act by the servant, a verdict exonerating the servant also exonerates the master; consequently, in that posture, a verdict against the master alone cannot stand. However, it is otherwise where there are allegations of negligence against the master independently of the actions or failure to act by the servant.
2, 4. Where, by its verdict, the jury has exonerated the servant, and thus the master, of all charges relating to speed in the operation of a train, the admission of a city speed ordinance, if error, was harmless. For the same reason a charge relative to the ordinance was harmless.
3. Where the language of a Code section has been properly charged, reversible error does not appear from the fact that the court thereafter also charged on the matter, paraphrasing the Code section.
5. Under the facts here, a charge of Code § 38-119, given in a manner which might be applied against either party, was not error.
SUBMITTED FEBRUARY 3, 1971 — DECIDED JUNE 8, 1971 — REHEARING DENIED JUNE 24, 1971.
On October 1, 1965, Mel Harris left Miami, Florida, about midnight to go in his car to Kingsland, Georgia, to visit an ill relative. Accompanying him were his wife Doris (the appellee here), his mother and three aunts. All had formerly lived in Kingsland. They arrived at Jacksonville the following morning about about 9, and after a stop there, went on, arriving at Kingsland about noon, and after lunch went to visit the ill relative. About mid-afternoon they left the relative's home to go to the home of Mrs. Carrie Johnson, where they were to stay. Harris drove south on Railroad Avenue, which parallels the railroad, turned east on Hilton Street, and the car was struck by a northbound freight train at the grade crossing with Hilton Street. The weather was fair, clear and warm. The windows were up, the air conditioning was on and a radio was playing.
Harris testified that as he traveled along Railroad Avenue his vision of the tracks was obscured by a heavy growth of trees and underbrush and that he did not see the train approaching; that he stopped within 25 feet of the track, looked, but the view was still obstructed, and he then continued. As he neared the track someone in the car shouted "There comes a train!" and he applied the brakes, but it was too late. The overhang of the front engine caught the front of the automobile, spun it around into the side of the engine, and thence into the adjacent ditch. He had not heard the sound of any bell, horn or whistle. There were no signal lights, warning bells or crossing gates at this grade crossing, nor was there a flagman. There was a cross-buck "Railroad Crossing" sign with another beneath it indicating that there were "4 rails."
There was testimony that there was a dense thicket of trees, undergrowth and foliage in the southwest quadrant of the intersection of Hilton Street and the crossing, which was some 20 feet high and too dense for seeing through, and that it extended about 40 feet into the railroad right of way and within 60 feet of the center of its main line.
Plaintiff, the wife of the driver of the car and an occupant thereof at the time of the collision, sued the railroad and its engineer seeking damages for personal injuries, alleging that because of the railroad's and the engineer's negligence she had suffered serious permanent injuries, had incurred medical expense in the treatment thereof amounting to $1,381.50, and had suffered a loss of earnings amounting to $2,400. The railroad was charged with negligence in that (a) it had failed to maintain a proper and safe crossing, (b) had maintained the crossing as a blind and dangerous one, (c) had allowed trees and undergrowth to grow up in the right of way, (d) failed to maintain at the crossing a flagman, signal lights, crossing gates or other device to warn motorists of the approach of trains, (e) failed to maintain efficient warning and stop signs at the crossing. The railroad (under respondeat superior) and its engineer were charged with negligence in (a) failing to sound the bell, horn or whistle, (b) failing to keep a constant lookout ahead along the tracks, (c) operating the train at a high and dangerous rate of speed, in excess of 60 miles per hour, which was greater than was reasonable and safe under the conditions existing, and in excess of the speed permitted by a valid ordinance of the City of Kingsland, which limited the speed to 15 miles per hour, and (d) failing to have the train under safe and proper control.
After trial before a jury a verdict was returned for the plaintiff against the railroad only. The railroad moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial. From the overruling of the motion, as amended, and from the judgment on the verdict, the defendant railroad appeals.
1. (a) Appellant urges that the evidence did not authorize the verdict, and that the plaintiff failed to carry her burden of proving the negligence charged by a preponderance of the evidence. There is conflict in much of the testimony, and a verdict for the defendant railroad would have been authorized if the jury had viewed the evidence as requiring such a verdict from them in the performance of their duty. But the fact that the record may indicate that the evidence preponderated in favor of the losing party is not a sufficient basis, on appeal, to set the verdict aside. The trial judge had the power to set the verdict aside if he did not think it authorized by the evidence, but it comes to us with his stamp of approval. There is evidence in the record which, if believed by the jury, authorized the verdict for the plaintiff. It was for them to pass upon the credibility and the weight to be given the evidence and all of its portions. The general grounds are without merit. Unless some error of law appears, we must affirm. Middleton v. Waters, 205 Ga. 847 (5) ( 55 S.E.2d 359).
(b) Appellant contends that since a verdict was returned against the railroad only, and the engineer, with whose negligence it was charged, was exonerated, the verdict cannot stand. This position would be sound and would require a reversal if all of the negligence charged against the railroad had been attributable to action or lack of action by its servant, the engineer. Southern R. Co. v. Harbin, 135 Ga. 122 ( 68 S.E. 1103, 30 LRA (NS) 404, 21 AC 1011). But the engineer was not charged with the railroad's failure to maintain the crossing, or its right of way, or to provide proper warning devices or signals at the crossing, nor does it appear that these were within the scope of his duties. Consequently, the exoneration of the engineer exonerated the railroad only as to those acts of negligence which were charged against it because of the actions or the failure to act in specified particulars by him under the doctrine of respondeat superior. Southern R. Co. v. Garland, 76 Ga. App. 729, 741 ( 47 S.E.2d 93). This contention is, therefore, without merit.
2. Appellant enumerates as error the admission of a certified copy of what purported to be minutes of a meeting of the Mayor and Council of the City of Kingsland including an ordinance limiting the speed of trains within its limits to 15 miles per hour, on the ground that if affirmatively appeared from the minutes of the mayor and council that the ordinance was not lawfully adopted.
The minutes introduced show that "Councilman Peeples made motion, seconded by Councilman Brown, for the maximum speed of trains through the City of Kingsland to be 15 miles per hour. Councilman Brown made motion, seconded by Councilman Peeples, for all trains not to block crossings of U.S. 17 no longer than 5 minutes and all other crossings 10 minutes. The city clerk was instructed to write Mr. J. H. Hester, Superintendent, Seaboard Railroad Company, pertaining to these ordinances." Whether a vote was taken on the motions does not appear.
It is elemental that an ordinance is not lawfully adopted until and unless it has received the requisite majority of votes after proposal in a meeting of the governing body of the city. Western A. R. v. Swigert, 57 Ga. App. 274, 275 ( 195 S.E. 230). If other formalities are required by the charter or by statute, it must appear that these have been fully complied with. City of Cartersville v. McGinnis, 142 Ga. 71 ( 82 S.E. 487, AC 1915D 1067). If the minutes of the council meeting had recited that the ordinance had been "passed" or that it had received the requisite vote, there would be a presumption that all statutory requisites had been met, and one attacking the ordinance would have the burden of showing to the contrary. City of Cartersville v. McGinnis, 142 Ga. 71, supra; Atlantic Co. v. Jones, 86 Ga. App. 515 ( 71 S.E.2d 824). However, there is no such recital in these minutes — they show no more than a formal introduction of the proposed ordinance at a council meeting. We all know that multitudes of laws and ordinances are introduced before legislative bodies which never come to a vote and hence are never passed or adopted. No presumption of adoption can arise, therefore, from its mere introduction. "A copy of an alleged city ordinance accompanied by the certificate of the clerk that it is taken from the book of ordinances of the city is inadmissible in evidence when unaccompanied by an exemplification of an adopting resolution, pertinent portions of the corporate minutes, or other like matter showing that either the ordinance itself, or the book of ordinances from which it was taken, was in fact adopted by the city." (Emphasis supplied). City of Dalton v. Cochran, 80 Ga. App. 252 (3) ( 55 S.E.2d 907). Accord, Western A. R. v. Peterson, 168 Ga. 259 ( 147 S.E. 513).
Admission of this ordinance was clearly error. However, since it appears that by its verdict the jury exonerated the engineer, and thus the railroad, of all charges of improper or unlawful speed in the operation of the train, the error was harmless, and will not work a reversal here.
3. The court charged, relative to the railroad's duty to maintain the crossing, the language of Code § 94-504, and later included a paraphrasing of the Code section. Appellant enumerates error, asserting that this gave undue emphasis to the matter. While it is better to avoid unnecessary repetition of matters in a charge we cannot say that what was done here was calculated to confuse or to influence the jury unduly.
4. For the same reason we have held harmless the admission of the ordinance limiting the speed of trains into evidence, we find the charge relative thereto to be likewise harmless.
5. The court charged the provisions of Code § 38-119 relative to the presumption arising from failure to produce evidence within the possession or control of a party, and appellant enumerates this as error. We agree with the many cases which have cautioned as to the manner in which this Code section should be referred to in a charge, but since the court did not refer to either party, and thus charged it as an abstract proposition which might apply equally to either party, we do not think it requires a new trial. See the discussion of this matter in Cotton States Fertilizer Co. v. Childs, 179 Ga. 23 ( 174 S.E. 708).
Judgment affirmed. Hall, P. J., and Whitman, J., concur.