Atlantic Coast Line Railroad Co. v. Godard
Atlantic Coast Line Railroad Co. v. Godard
Opinion of the Court
Special grounds 4 and 5 of the amended motion for a new trial complain of the introduction of testimony regarding one Clarence Bennett, to the effect that he was seen on the defendants’ premises on numerous occasions in 1938; that he stayed in and around the depot waiting room for about six weeks; and that subsequently he burglarized a grocery store across the street. The objection that this testimony was too remote in point of time is not well taken for the reason that the plaintiffs were showing a series of incidents extending from that time up until the attack involved in this case to show that lawless characters, prowlers, and hoboes frequented the area. By itself it might be too remote to sustain a recovery, but its admissibility, in connection with other testimony as to more recent occurrences, is beyond doubt. It was not irrelevant or immaterial as not being illustrative of the issues involved.
Special grounds 6, 7, 8, and 9 complain of the admission of evidence by non-expert witnesses substantially similar to that set out in division 4 of the opinion in A. C. L. R. Co. v. Godard, supra, as to the physical condition of the deceased from the time of his attack until his death. Objections to that testimony, or very similar testimony, were held in the 4th division of the opinion in that case not subject to the objection that it was a conclusion because “the conclusion of a non-expert witness, or his opinion, is admissible when predicated upon facts stated by the witness.” This disposes of the objection that the testimony was inadmissible because it was not such testimony as may be given by a non-expert witness. See also American Fidelity &c. Co. v. Farmer, 77 Ga. App. 166 (17) (48 S. E. 2d 122). As to the foundation laid for the opinions given, E. A. Baker, Jr., testified that he visited his
In special ground 10 error is assigned on the introduction of four railroad rules, one of which provides that station agents must promptly advise the superintendent of all local matters which may affect the interests of the railroad, the grounds of objection being that the rules were irrelevant and immaterial. This rule might have had some slight relevancy, though little materiality, on the issue of notice by the defendant of prior law violations on the premises. However, the admission of irrelevant and immaterial evidence noü’bf such harmful character as that its admission taken alone would be cause for reversal will not cause the appellate court to grant a new trial. Crawley v. State, 150 Ga. 586 (2) (104 S. E. 410).
The admission of medical bills, contended to be erroneous in special ground 11, was justified by sufficient medical testimony to authorize the jury to find that the treatment necessitated, to which these bills made reference, was at least in part occasioned by the beating, and was not wholly attributable to illness resulting from cancer. The jury could also have found from this testimony that the cancer was aggravated by the beating. Evidence as to these medical expenses was accordingly admissible.
An assignment of error merely that the court erred in failing without request to charge “the measure of damages for the decreased earning capacity to labor and work in the event the injury was not permanent,” without setting out in substance what it is
In special ground 13 it is contended that the court erred in charging as follows: “I charge you that the general rule that an intervening criminal act of a third person will insulate a defendant from liability for an original act of negligence does not apply where it is shown by the evidence that the defendants had reason to anticipate the criminal act, and whether or not the defendants in this case had reason to anticipate the criminal act of a third person with whom they had no relationship whatsoever and over whom they had no control whatsoever, if such be the case, is solely a question for the jury to determine under the evidence in this case.” Since the Supreme Court on the previous appearance of this case (211 Ga. at page 377) stated: “The general rule that the intervening criminal act of a third person will insulate a defendant from liability for an original act of negligence does not apply when it is alleged that the defendant had reason to anticipate the criminal act.” In answer to the defendant’s contention that its only duty being to exercise ordinary care, this charge placed upon it a burden greater than that required by law, it can only be said that it has already been established in this case that, upon proof of the acts of negligence alleged, it must be concluded that ordinary care under the circumstances included the duty to anticipate a repetition of criminal acts and to take measures to guard against them. This ground is without merit.
Special ground 14, contending that the verdict of $6,000 was grossly excessive, will be considered in connection with the general grounds. The testimony relative to the essential allegation that the defendant railroad company had reason to anticipate criminal acts of third persons on its premises because dangerous characters, hoboes, and prowlers frequented the area and the defendants, with knowledge thereof, failed to take precautionary measures, is substantially as follows: L. B. Chambers testified for the plaintiff: “There is a gin house property located in the general vicinity of the Georgia Railroad station, about a block from it. . . I have been around the gin house at night. In my visitations to the gin
' George P. Saye testified for the plaintiff: “This is the 19th year that I have been sheriff of Morgan County. Part of my duties is to apprehend persons violating the law. I am familiar with the Georgia Railroad as it runs through Morgan County and know where the depot is in Madison. During my tenure in office as sheriff I have had occasion to apprehend persons violating the law or charged with stealing from the railroad. I can recall one of such instances but I am sure there must have been more than that. I did not apprehend him. He was apprehended in Augusta and turned over to me. I brought him here to the county jail. This involved the railroad property in this county. The county authorities in Augusta contacted me about taking charge of it. As to my knowledge of whether the officials of the Atlantic Coast Line—this particular line, knew about that; they were not there when we were talking to him about it. I guess they did. I couldn’t say off-hand what year it was. I think it was about ten years ago; maybe more than ten. . . We had one other case involving the railroad. The seal was broken and some merchandise taken out of the car. I can’t recall the name. The seal is put on a railroad car so you can tell if anyone goes in there. The seal has to be broken if it is opened. This was before the war. . . In my business as sheriff I consider it one of my duties to watch for strangers and suspicious characters and identify who they are and where they came from. In my 18 years I have seen such characters as that around the Georgia Railroad depot in Madison. I have seen it more than one time. As to the places in Madison where I have seen suspicious people, I would not pick out any particular place where I have seen more of them than any other place. I have seen them at the depot and at other places too. I have seen them at the depot numerous times. I have seen them daytime and night-time. . . As to how long prior to July 23, 1951, it was that I saw the last man, I have seen people there every day since I have been in office and have talked to them personally. I did not know them. Off-hand I couldn’t recall the names of any
Hugh Morgan, called by the plaintiff for cross-examination, testified: “I am employed by Georgia Railroad and was here in Morgan County for a time. I came here in 1933 and I believe it
I. B. Cooper, called by the plaintiff for cross-examination, testified: “I have seen some hoboes riding trains through Madison. I don’t believe I have ever seen them alight from the train. As to whether I have seen persons around the depot that were dirty and dangerous looking, I don’t go to the depot so much at night. In the daytime, without seeing any person get off the train, I have seen them pass through during that time, as station agent. I would not say as long as I have been at Madison I have seen them on the ground, dirty people, unclean strangers, people I didn’t know.”
Francis Burge testified for the plaintiff: “I am connected with Morgan County in an official way as County Police. I have been County Police since 1941. In my job as county policeman I have an interest in trying to see what goes on in the way of strangers that come through the county. I know where the Georgia Railroad is located and where the Georgia Railroad runs through Morgan County. In my official capacity as county policeman, I have been called to the Georgia Railroad premises during my tenure in office. As to how many times I would say I have been called there, well, I haven’t been called as much since I have been county police as when I was city police. As to how many times I have been called when I was city police and county police together, when I was city police I was called a good many times; I didn’t keep any record. Mr. Hugh Morgan, the station agent, would be the person calling me to come there. He would call me to come to the Georgia Railroad depot and I would go. As to whom I would find on some of those occasions, he called me about suspicious people, hoboes. It would be at
G. B. Patrick testified for the plaintiff: “I am Chief of Police of Madison, Georgia, and have been such since 1948. In my capacity as Chief of Police I have had occasion to visit the depot in Madison. I go down there every morning. I have gone down there at night some of the times but not often. When I was night policeman I went every night. From 1935 to 1944 I was night policeman before I became Chief of Police. During the time I have been night policeman and Chief of Police I saw hoboes at the depot, plenty of times. The station agent was present. He could see. On one particular occasion I do recall the McDowell incident where some goods were taken from McDowell’s. I remember seeing the person who did it. Pie stayed there in the depot. With reference to Clarence Bennett, I saw him in the ¶ aiting room at the depot. I couldn’t name the times; he was there almost every night continuously, I would say, for six weeks in the depot. I saw the station agent there during the time he was there. As to whether he was close to the station agent, well, he would always go in the waiting room. There is a window that opens from the waiting room into the place where the station agent stays. There was a passenger train that came along during the periods of time I would see him in there. From the position where the station agent would stand at the window he would be able to see the waiting room. He was a man who could see. He was in there for a period of six weeks. He was a stranger. He left there and went into the country and stayed there two or three weeks. . . I testified that I had seen this Clarence Bennett in the station waiting room for some six weeks. The reason I didn’t arrest him was because I had no evidence he was a lawless character. As to whether it is true that at the time I did pick him up he was living in the country, yes, after the place was broken into, the place was broken into after he moved out in the country. He moved out in the country some time prior to 1938. I have been Chief of Police since 1948.”
When this case was before the Supreme Court it was reversed on the general grounds because the evidence was insufficient to support the allegations that the defendants “well knew that dangerous, reckless, and lawless characters and persons who were strangers frequented the premises described during the nighttime, including prowlers and hoboes.” The evidence on this trial is set forth somewhat in detail in order to demonstrate that, although
The trial court did not err in denying the motion for a new trial.
Judgment affirmed.
Dissenting Opinion
dissenting. The gist of the action is that dangerous characters, hoboes, and prowlers frequented the area where the deceased employee worked (as alleged in paragraph 20 (a)), and that the defendants had knowledge thereof and failed to take precautionary measures. I do not think that the evidence supported the conclusion that the premises were frequented by such persons as those alleged so as to require the defendants to guard against the consequences thereof.
G. B. Patrick, Chief of Police, testified that Clarence Bennett burglarized McDowell Grocery Company ten or more years ago; that he was seen on the defendants’ premises on numerous occa
Reference
- Full Case Name
- ATLANTIC COAST LINE RAILROAD COMPANY Et Al. v. GODARD, Executrix
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- 5 cases
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- Published