applying this "reckless" standard to Section 51-1-11(c)Summary of this case from Gaddy v. Terex Corp.
DECIDED OCTOBER 26, 1950. REHEARING DENIED DECEMBER 15, 1950.
Damages; from Fulton Superior Court — Judge Moore. August 2, 1950. (Application to Supreme Court for certiorari.)
Lokey Bowden, for Arrington.
MacDougald, Troutman, Sams Schroder, for Atlantic Coast Line R. Co.
Hewlett Dennis, T. F. Bowden, for Trammell.
( a) Whether certain conduct amounts to wantonness is a jury question if reasonable minds might disagree as to whether or not it is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit of actual intent.
( b) The verdict is authorized by the evidence and, having the approval of the trial court, it will not be disturbed by this court.
DECIDED OCTOBER 26, 1950. REHEARING DENIED DECEMBER 15, 1950.
The defendant in error, E. C. Trammell, herein referred to as the plaintiff, brought suit in the Superior Court of Fulton County against the Atlantic Coast Line Railroad Company and its employee, H. C. Arrington, for personal injuries resulting to him from the derailment of a train belonging to the railroad company and operated by its engineer, Arrington. The petition was first brought in two counts and contained allegations of gross negligence. During the trial it was amended by adding a third count, based upon wilful and wanton misconduct, and by stipulation the case went to the jury on the allegations of the third count alone. As thus amended the petition alleged substantially: that the plaintiff was an employee of the defendant railroad company not at that time on duty and was riding lawfully upon a pass issued to him by that company for the purpose of going to Atlanta from his home in Manchester, Georgia, to take his run as a fireman on one of the defendant's trains that night; that he entered a crowded coach car and was instructed by the conductor to go into the baggage car in order to make room for passengers, which he did; that at 6:55 p. m. on September 12, 1948, as the train passed over the south switch at Dungannon, in Fulton County, the engine and other equipment of the train, including the baggage car, were derailed and the plaintiff injured in certain described particulars resulting in the loss of his right leg below the knee and other injuries; that the track was straight for a quarter of a mile south of the point of derailment; that a target switch was installed at the point of derailment; that the engineer did look at a distance of 1200 feet from the switch but did not ascertain whether the target was red or green; that he nevertheless ran the train forward at a reckless speed of 55 miles per hour without checking his speed; that in point of fact the target switch was so set that it displayed neither red nor green, which indicated that the switch was party open and partly closed; that in spite of this the defendant failed to check the speed of the train before passing over the switch and into the passing track, failed to see the partly open switch, failed to keep a strict lookout ahead, and thereby caused the plaintiff's injuries. "And said conduct of the defendants was so reckless and so charged with utter indifference to the consequences to those who were riding in said train, including your petitioner, as to amount to wantonness."
The evidence on the trial presents little conflict. Estimates of the speed of the train are between 40 and 55 miles per hour. The emergency brakes were applied between 350 and 400 feet from the switch. The track was straight leading to the switch for a distance of 1200 to 1400 feet. The derailment occurred six minutes after sunset as chronicled by the U.S. Department of Meteorology. The testimony was in sharp conflict as to whether it was dusk at that time or clear daylight, an expert witness testifying that dusk did not set in until about 20 minutes past sundown. Having noted these discrepancies, and construing the evidence in its light most favorable to support the verdict, the jury were authorized to find facts substantially as follows: that the defendant was riding in the baggage car under instructions from the conductor on a pass which contained the following words: "The person accepting this free ticket agrees that the Atlantic Coast Line Railroad Company shall not be liable, under any circumstances, whether of negligence of agents or otherwise, for any injury to the person or for any loss or damage to the property of the passenger using the same"; that the engineer, on rounding the curve, looked to see what the switch signal showed but did not see it; that it was a clear day and not yet dusk and, at that distance, there was nothing to prevent him from seeing it and that, if he had seen it, he would have had ample opportunity to slow down to 20 miles an hour, which would have been a maximum speed to approach an open or partly open switch; that he was traveling at the rate of 55 miles per hour until he was within approximately 350 feet from the switch; that the fact that he did not see the switch, if he looked at it as he testified, should have been an absolute warning that something was badly amiss; that something was amiss in that the switch was improperly set, neither the green circle, indicating safety, nor the red fishtail, indicating danger, being set out over the track, but both standing at an angle thereto; that Rule 27 of the defendant railroad's rule book under which the engineer operated is as follows: "A signal imperfectly displayed or the absence of a signal at a place where a signal is usually shown must be regarded as the most restrictive indication that can be given by that signal"; that it is also a rule that speed of all trains is to be reduced when not consistent with safety; that a speed of over 20 miles an hour is almost sure to be disastrous unless the switch is closed; that the engineer was chargeable with knowledge of all these facts but that, because he was certain that his was the only train on the track he did not heed them, but continued with his speed unabated until within about 350 feet of the switch, at which point it was too late either to stop the train or to slow it to a safe speed.
The jury returned a verdict for $17,500 in favor of the plaintiff. The motion for a new trial is on the general grounds only, and the overruling of this motion is assigned as error.
As stated in the briefs of counsel, the sole issue before this court is whether there was any evidence to authorize a finding by the jury that the conduct of the defendant amounted to wantonness, as alleged. For the reason that the employee was riding a free pass, issued pursuant to the Hepburn Act (49 U.S.C.A., Sec. 1 (7)) mere negligence on the part of the railroad company and its servants would be insufficient to sustain a cause of action against it. Wright v. Central of Ga. Ry. Co., 18 Ga. App. 290 ( 89 S.E. 457); Forster v. Southern Ry. Co., 39 Ga. App. 216 ( 146 S.E. 516). Whether, as against the engineer as an individual, it would be necessary to show more than ordinary negligence is not considered because the plaintiff must prove his case as laid, and after electing to rely upon count three alone for his recovery, questions involving mere negligence as set out in counts one and two are not here for consideration.
The decision here must depend upon a definition of the word "wanton," upon its application to the facts of this case, and upon a decision, after so applying it, as to whether there is sufficient evidence to authorize a verdict in favor of the plaintiff. For the very reason that the words "wilful and wanton negligence," and "wilful and wanton misconduct" and "reckless disregard of the rights of others" have been so frequently defined and so widely applied, it is the more difficult to reach a clear-cut decision in many instances, and this is a close case. The rule has frequently been stated that the plaintiff cannot recover unless the defendant's conduct "was such as to evidence a wilful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences . . as to justify the jury in finding a wantonness equivalent in spirit to actual intent. Lanier v. Bugg, 32 Ga. App. 294, 297 ( 123 S.E. 145); Central of Ga. Ry. Co. v. Moore, 5 Ga. App. 562 (1) ( 63 S.E. 642); Harris v. Reid, 30 Ga. App. 187 ( 117 S.E. 256); Pressley v. Atlanta West Point R. Co., 48 Ga. App. 382 ( 172 S.E. 731); Richardson v. Pollard, 57 Ga. App. 777 (2-5) ( 196 S.E. 199); Forster v. Southern Ry. Co., 39 Ga. App. 216 (2) (supra); Southern Ry. Co. v. Davis, 132 Ga. 812 ( 65 S.E. 131). As stated in Central Ry. Co. v. Moore, supra, "The plaintiff's right of recovery turns solely on the question as to whether the defendant's engineer acted wilfully and wantonly, that is to say, intentional or reckless disregard of human life, by not giving any warning and by allowing the engine to run on and strike the plaintiff whom he saw sitting in his intoxicated condition. . . If the defendant's engineer did this, if he acted in this spirit and not in simple carelessness or bad judgment, the plaintiff ought to recover such damages as he can legally show to the satisfaction of the jury; otherwise he ought not to recover at all." (Italics ours).
It is not here contended that the engineer conceived the intent to injure the plaintiff, but that the same effect resulted from his wantonness or reckless disregard of human life in running the train in the manner and under the circumstances in which he did and while chargeable with knowledge of the probable result of such acts on his part. Reckless disregard of another's safety differs from both ordinary and gross negligence. It differs "from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference of kind." Restatement of the Law, Torts, Ch. 19, § 500 (g). However, intentional (wilful) misconduct and reckless (wanton) misconduct have been differentiated as follows: "While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realize or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct may prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results." Id., § 500(f). And, "in order that the actor's conduct may be in reckless disregard of the bodily security of others, it must not only involve a high degree of probability that death or serious bodily harm will result therefrom, but the circumstances must be such that the risk so created is unreasonable," that is, not justified by the end to be attained. Id., § 500 (2). In this case the end to be attained was to prevent the loss of the seconds or minutes of running time involved by slowing down the train; the risk run, of course, was the absolute certainty of derailment if the switch was open. Under the definition of wantonness as reckless disregard of human life in Central Ry. Co. v. Moore, supra, a jury question is presented as to whether the act done created a "strong probability" that harm might result. As noted above, however, in other cases our courts have appeared to demand an even stronger case, that is, proof that the misconduct is reckless in the degree that the jury would be justified to find it equivalent in spirit to actual intent.
In the present case, the defendant engineer knew that he was approaching a switch. He knew the speed at which he was traveling. He knew that if he entered the switch at that speed and it was open the train would derail and bodily injury almost certainly result. He knew that he looked for the signal as he rounded the curve but was unable to see it. The jury was at liberty to believe that he did not see it because of the dusk, or to believe that it was not dusk and that he did not see it because it was imperfectly displayed. The engineer knew that an imperfectly displayed signal would be difficult to see, and that it was the most restrictive indication the signal was capable of giving.
Chargeable with knowledge of these things, he continued at a high speed until he had reached a point too close to the switch to enter it safely. The jury by its verdict constituted this conduct, not intentional, but so reckless as to be equivalent in spirit to intent.
Whether certain specified conduct amounts to slight negligence, ordinary negligence, or gross negligence, is a question for the determination of the jury where the conduct is such that different minds might reasonably draw different conclusions therefrom. Southern Stages v. Clements, 71 Ga. App. 169 (2) ( 30 S.E.2d 429); Flannigan v. State, 136 Ga. 132 ( 70 S.E. 1107); Jordan v. Lee, 51 Ga. App. 99 ( 179 S.E. 739); Chenall v. Palmer Brick Co., 117 Ga. 106 ( 43 S.E. 443); Macon Telegraph Pub. Co. Co. v. Graden, 79 Ga. App. 230 ( 53 S.E.2d 371); Georgia Power Co. v. Blum, 80 Ga. App. 618 ( 57 S.E.2d 18). Whether certain conduct amounts to wantonness is a jury question if reasonable minds might disagree as to whether or not it is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit of actual intent. On the other hand, where such conduct is susceptible of but one inference that it is not negligent, or, in cases of wantonness, that it is not wanton, and reasonable minds could draw only such inference therefrom, then the absence of negligence, or the absence of wantonness, is a question of law for the determination of the court. Georgia Power Co. v. Blum, supra; Lester v. Foster, 40 Ga. App. 500 ( 150 S.E. 433).
Counsel for the plaintiff cite numerous cases involving railroad passes, injuries to trespassers, etc., in which the decision hinged upon the question of whether the acts of the defendant amounted to wilful and wanton misconduct, among them the following: Evans v. Texas Pacific-Missouri Pacific Terminal R., 134 Fed. 2d, 275; Pennsylvania R. Co. v. Goldie, 182 Fed. 2d, 9; New York Central R. Co. v. Mohney, 252 U.S. 152 ( 40 Sup. Ct. 287, 64 L. ed. 502); Bonzik v. Delaware Hudson R. Corp., 25 F. Supp. 435; Central R. Bkg. Co. v. Denson, 84 Ga. 774 ( 11 S.E. 1039); Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 154 ( 178 S.E. 451); Bremer v. Lake Erie W. R. Co., 318 Ill. 11 ( 148 N.E. 862, 41 A.L.R. 1345). Without discussing them in detail, examination of the facts, especially in the Federal decisions, indicates that our courts have frequently, on facts no stronger than those in the instant case, held that the jury was authorized to find the conduct alleged amounted to wantonness. These decisions are good authority that reasonable minds disagree as to whether or not conduct comparable to that here shown on the part of the engineer amounts to such wantonness as to support a verdict based thereon. There has often been a disagreement in the minds of reasonable men as to whether the disregard of a signal, the disregard of a human being, the disregard of an object in plain view, or other similar circumstances, amounts to wantonness. Even Judge Hutcheson, dissenting from the judgment of affirmance in Evans v. Texas Pacific-Missouri c. R., supra, states that, as to wanton and reckless negligence, "the facts must show either that the party knew his conduct would inflict injury or the facts must show that on account of the attending circumstances, which were known to him, or a knowledge of which he was chargeable with, the inevitable or probable consequences of his conduct would be the infliction of injury, and with reckless indifference to the consequences committed the act."
Counsel for the defendants insist that the element of wantonness is taken out of the conduct of the engineer because the evidence is undisputed that he had operated trains over this same track and by this signal for years and had never found it other than a clear signal indicating a closed switch unless he had previous information that he was to take that siding on account of meeting a train, and that on this particular occasion he had previous information that he was to meet no train at this point or any other point before he reached his destination in Atlanta. The jury had a right to find, however, that the conduct of the engineer in disregarding a signal and the rule of the railroad company which in substance directs that employees shall regard the absence of a signal or an imperfectly displayed signal at a place where a signal is usually shown as the most restrictive indication of danger, was such as to amount to wantonness on his part and that the information which he received from proper railroad authorities that he was to meet no train was not sufficient to relieve him. The switch could become opened and the danger signal appear, or the signal become imperfectly displayed, for reasons other than the approach of a train. Indeed, this appears to be what happened. Had mere information relayed by the proper authorities of the railroad company that he was to meet no train, been regarded as sufficient precaution, there would have been no occasion to locate a signal there at all. The signal having been located there, the jury had a right to find it was the duty of the engineer to abide by it and his failure to do so amounted to wantonness.
The verdict is authorized by the evidence and, having the approval of the trial court, it will not be disturbed by this court.
The trial court did not err in overruling the motions for new trials.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.