author: Wade, 0. J.

text:
    8064.
    SEABOARD AIR-LINE RAILWAY v. COOPER.
    1. It is conceded in the brief of counsel for the plaintiff in error that under the charge of the court there was some evidence to authorize the verdict.
    2. There is no merit in those grounds of the motion for a new trial in which excerpts from the charge of the court are complained of upon the ground that the court therein failed to confine the'jury to the ascertainment of the precise damages alleged in the plaintiff’s petition. As there was no contention as to any element of damage or negligence except that set forth in the petition and supported by some proof, the jury could not have been misled by the general terms employed by the court.

      3. Where one of the defenses interposed to a suit against a railroad company for personal injuries received by a passenger in alighting from a train at a station was that the injuries resulted solely from lack of ordinary care on the part of the passenger, it was error for the court to charge as follows: “Now, if you believe that she [the plaintiff] did negligently and of her own act, and without exercising ordinary diligence, bring about the injuries, then, if you believe that the railroad has exercised extraordinary diligence in protecting her and believe both of these things to appear in this case, she would not be authorized to recover. ”
    Decided July 23, 1917.
    Action for damages; from Madison superior court—Judge Meadow. January 29, 1916.

      J. F. L. Bond, Cobb, Erwin & Rucker, for plaintiff in error.

      Berry T. Moseley, John J. & Roy M. Strickland, contra.
   Wade, 0. J.

It is unnecessary to amplify any of the foregoing rulings except that contained in the 3d headnote. The plaintiff was a passenger on a train of the defendant, and was injured when alighting at her destination. The 7th ground of the motion for a new trial is that the court erred in charging the jury as follows: “If you believe that she [the plaintiff] did negligently and of her own act; and without exercising ordinary diligence, bring about the injuries, then, if you believe that the railroad has exercised extraordinary diligence in protecting her and believe both of these things to appear in this case, she would not he authorized to recover.” The errors assigned are: “(a) The charge excepted to is not a correct statement of the law. (6) The court should have charged that if the plaintiff was not in the exercise of ordinary care at the time she sustained the injuries complained of, she could not recover; but the charge referred to permitted the.jury to find for the defendant only in the -event the plaintiff did not exercise ordinary care and the defendant company was shown to have been in the exercise of extraordinary care and diligence at the time of the alleged injury.” The entire charge given in this connection was as follows: "A carrier of passengers (this is a rule of law, which you are entitled to have to help guide you in your investigation in this case)—a carrier of passengers is bound also to extraordinary diligence, on behalf of himself and his agents, to protect the lives or the persons of his passengers. But he is not liable for injuries to the person after having used such diligence. Now in your investigations in this case you want to. determine whether the plaintiff sustained these injuries complained of by her, or any of them, at the hands of the defendant railway company. If the proof shows that, then the law presumes negligence on the part of the railway. A railway, if it shows, notwithstanding she may have been hurt,—if the railway shows that it and its officers and agents exercised extraordinary diligence in trying to protect this passenger, then in that event they would not be liable in this suit. Now one of the contentions among those of the defendant is that this woman, the plaintiff in the case, was of her own fault attempting to alight from a moving train, and that her own fault caused whatever injury she may have sustained, I charge you that that is all (as well as all other facts in the case) a matter for you, under all this evidence and all of the facts and circumstances in the case, to determine whether or not she had negligently and without the exercise of-ordinary diligence on her part undertaken to pass from a moving train. Whether she did or did not is a matter for you to determine; and if she did undertake to pass from a moving train, you are then to determine what rate that train was moving at, and whether-or not her act in stepping off of that train was in exercise of -ordinary diligence or not. It is not for the court to decide, but all of the facts are for the jury to decide and determine. Now, if you believe that she did negligently and of her own act, and without exercising ordinary diligence, bring about the injuries, then, if you believe that the railroad has exercised extraordinary diligence in protecting her, and believe both of these things to appear in this case, she would not be authorized to recover.”

It will be observed that in this charge the court instructed the jury that a carrier of passengers is bound to extraordinary diligence, but not liable for injuries to a person after having used such diligence, and further instructed them that one of the contentions made by the defendant was that the plaintiff brought about the alleged injury through her own failure to' exercise ordinary diligence in passing from a moving train, and still further “that if the railway shows that it and its officers and agents exercised extraordinary diligence in trying to protect this passenger, then in that event they would not be liable in this suit.” The court further instructed the jury that it was for them to determine, under all the facts and circumstances in the ease, “whether or not she had negligently and without the exercise of ordinary diligence on her own part undertaken to pass from a moving train;” and added.: “Whether she did or did not is a matter for you to determine; and if she did undertake to pass from a moving train, you are then to determine what rate that train was moving at, and whether or not her act in stepping off of that train was in the exercise of ordinary diligence.” Nevertheless, it does not appear that in this connection or elsewhere in the charge the court ever instructed the jury, as an independent proposition of law, that if the injury was caused by the negligence of the plaintiff she could not recover. In other words, the court informed the jury that the duty rested upon them to determine whether the plaintiff was or was not in the exercise of ordinary diligence, but nowhere advised them of the legal consequences resulting solely from failure on her part to exercise such diligence.

The Civil Code, § 2781, declares that “no person shall recover damage from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence.” Section 4426 declares that “if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” Section 2714 declares: “A carrier of passengers is bound also to extraordinary diligence on behalf of himself and his agents to protect the lives and persons of his passengers. But he is not liable for injuries to the person, after having used such diligence.” It will be seen that as a matter of law the defendant might defeat a recovery by establishing, on the one hand, to the satisfaction of the jury, either that the injury was caused by the negligence of the plaintiff herself, or that the consequences resulting to her on account of the defendant’s negligence could have been avoided by the exercise on her part of ordinary care; or, on the other hand, by showing that extraordinary care had been employed by its agents and servants to protect the life and person of the plaintiff. The court not only omitted any sufficient instruction touching the legal consequences following a lack of ordinary care on the part of the plaintiff, but aggravated the vice in this instruction by including both independent defenses in the one instruction, and precisely and definitely informing the jury that a recovery on the part of the plaintiff would be defeated only in the event they believed “both” that she brought about the injuries complained of by her own act and without the exercise of ordinary'diligence, and that the railroad company had exercised extraordinary diligence in protecting her. To state it in another way: The court instructed the jury that, to defeat a recovery against the defendant, it must appear “both” that the injury resulted from a want of ordinary care on the part of the plaintiff and that the defendant had exercised extraordinary care to protect her as a passenger. The charge complained of indubitably confused the two defenses. It may have been that the railroad company did in fact exercise extraordinary care for the protection of the plaintiff, and therefore an injury could not have resulted to- her unless there was a failure on her part to exercise ordinary care; but nevertheless, when the court instructed the jury that a recovery was authorized unless it appeared both that the plaintiff failed to exercise ordinary care and that the defendant company in fact exercised extraordinary care, without even, in this connection or elsewhere, informing the jury what would be the legal consequences of a failure on the part of the plaintiff to exercise ordinary care, the- jury must have been impressed with the idea that a double burden was placed upon the defendant, and that a recovery was authorized notwithstanding a lack of ordinary care on the part of the plaintiff; and the instruction was therefore necessarily harmful.

. As suggested above, the two defenses, while closely connected, are independent; and placing them in such close juxtaposition, with the instruction that the jury must find both defenses good, in order to find against the plaintiff, amounted in effect to presenting for their consideration two different hypotheses, both of which must be sustained by the defendant, when in fact the establishment of either would prevent such a recovery. Eegardless of the conduct of the plaintiff, and irrespective entirely of whether the plaintiff exercised ordinary care or not to prevent the injury, if the defendant exercised that degree of extraordinary care required by law and this fact was made plainly to appear, a complete defense would be thus established. On the other hand, if the defendant was altogether lacking in the exercise of the degree of care required by law, but the plaintiff could have avoided the consequences of that negligence by the exercise of ordinary care, and failed to exercise that degree of care, still no recovery against the defendant could be had. In Americus, Preston & Lumpkin R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105), it was held that the trial judge erred “in stating in immediate connection with each other, and without proper explanation, two distinct rules of law, and thus qualifying the former by the latter, which is not the purpose of the statute.” Certainly the defenses allowed under sections 2781 and 4426 are entirely distinct from that authorized by section 2714, notwithstanding that the establishment of the one to the satisfaction of the jury would render it unnecessary to rely upon the other, and the defendant was entitled to avail itself of either, as alone sufficient to defeat a recovery, and should not have been required to establish satisfactorily both the one and the other. In Americus, Preston & Lumpkin R. Co. v. Luckie, supra, the court held it error to include in one instruction reference to a want of ordinary care on the part of the plaintiff as a complete defense, and the law touching contributory negligence, where the plaintiff was to some extent negligent, but nevertheless could not by using ordinary care have avoided an injury resulting from the defendant’s negligence. The trial court in that case confused inconsistent defenses without proper explanation; and the court in the'ease under consideration not only did this, but required the defendant to maintain both, or else suffer'a recovery for the damage alleged.

The error contained in this excerpt from the charge of the court was not elsewhere expressly retracted or corrected. As was said in Savannah, Florida & Western Ry. Co. v. Hatcher, 118 Ga. 273 (45 S. E. 239), “The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies another, without being instructed so to do by the judge.” Not only was the error not corrected, but nowhere in the charge were the jury properly instructed that a recovery would be defeated either by satisfactory proof that the agents and employees of the defendant railway had exercised extraordinary care to protect its passengers, or (regardless of negligence on the part of the defendant) solely by such proof of a want of ordinary care on the part of the plaintiff.

In view of the ruling on the 7th ground of the motion for a new trial, the 8th and 9th grounds need not be considered.

Judgment reversed.

George and Luke, JJ„ concur.


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
    8163.
    SEABOARD AIR-LINE RAILWAY v. HOLLIS.
    1. There was evidence to support the verdict.
    2. Where a suit tor damages against a railroad company is based upon a failure to observe the “blow-post law,” what may in fact have been the proximate cause of the injury, and whether it could have been avoided by the exercise of ordinary care on the part of the injured person, are questions of fact for determination by the jury, except where the undisputed testimony authorizes no other conclusion than that the plaintiff failed to exercise ordinary care.
    3. The failure of the trial judge to give the jury the requested instruction was not error since the principle involved was covered by the charge given.
    Decided July 23, 1917.
    Action for damages; from Muscogee superior court—Judge Gilbert. April 29, 1916.

      Henry B. Goetchius, William deL. Worsley, for plaintiff in error.

      G. 7. Tigner, A. W. Cozart, contra.
   Wade, C. J.

Hollis instituted a suit for damages against the Seaboard Air-Line Railway, on account of personal injuries, and. because of the destruction of an automobile in which he was riding, in a collision with a passenger-train of the defendant at a public crossing on a country road. He predicated his right to recover upon the alleged failure of the defendant to observe the “blow-post law” (Civil Code .of 1910, § 2675), by blowing the whistle of the locomotive and continuing to blow it while approaching the said crossing and until the crossing was reached,' and simultaneously checking and continuing to check the speed of the train, so as to have it under such control as to avoid colliding with any one who might be crossing or attempting to cross the track at the crossing; and asserted that the defendant ran its train across the public road at the crossing at the high and dangerous rate of speed of forty miles per hour. He alleged in his petition that as he neared the crossing he was prevented from seeing the approach of the train, because of certain obstacles adjacent to the track, and that he had no knowledge of its approach and no reason to expect its presence, since no signal or warning of its approach was given as required by law. The defendant denied that it had failed to comply with the “blow-post law,” and asserted that the plaintiff, at the time of the alleged injury, was accompanied by another man and two women, and that all of the party had been drinking intoxicating beverages, and were in such a state of inebriety as deprived them of the power to exercise ordinary care and diligence. The defendant further alleged, as the proximate cause of the injury, and as constituting a failure to exercise that ordinary care and diligence which if observed would have prevented the occurrence, various acts and omissions on the part of the plaintiff, to wit: his attempting to operate the automobile while incompetent to do so by reason of intoxication; his attempt to go over a public railroad-crossing at a high rate of speed, though he well knew of the location of the crossing; his failure, though knowing the location of the crossing, to slacken speed when approaching it, or to look or listen to ascertain whether a train was approaching. On the trial of- the case there was some evidence to support every material allegation of the petition, including proof as to the injury to the person and to the automobile of the plaintiff; and the jury returned a verdict in his favor for $750. The defendant made a motion for a new trial, which was overruled, and the judgment overruling the motion is here for review.

Counsel for the plaintiff in error contend in their brief that “on the point as to blowing, the evidence of the plaintiff was only negative, some of his witnesses stating that they did not hear the whistie sounded, but that it could have blown and they not have noticed.” An examination of the brief of evidence discloses that the engineer in charge of the locomotive testified: "I blew for the crossing at the blow-post about a quarter of a mile or 400 yards from the crossing on the right-hand side of the track,” and. “I blew two long and two short blasts,” and was "within 150 feet of the crossing when I ceased blowing,” and “I shut off steam at the blow-post and let the engine drift or roll.” . The fireman of the engine said: “I am certain the engineer blew the whistle approaching the crossing. . . Mr. Bellows [the engineer] gave the usual blow of two long and two short blows approaching the crossing. . . He shut off the steam and let the train roll after we passed the blow-post. He did not get right up to the crossing when he was blowing for tile crossing,—not until he reached the crossing. I don’t think he blew the whistle all the way from the blow-post to the crossing.' I don’t know that he checked and kept checking the speed of fhe train. I think the train was getting a little slower.” The conductor also testified that the whistle blew for the crossing and that the usual regular crossing signals were given, though he would not swear that the "engineer blew and kept blowing until [they] reached the crossing,” and ■ did not remember "that he cheeked and kept checking his train. The train ran about 250 feet past the crossing.” One Parkman testified that he heard the whistle blow for this crossing on the day the accident occurred. On the other hand, the plaintiff, who was certainly in a position to have heard the whistle, if such a signal was given, testified: “I never heard any whistle and never heard any train. I did not hear any whistle blow and never heard any train at all as I was approaching the crossing. If the whistle was blown, I did not hear it.” Since the evidence placed this witness in a position in which he must have heard’the whistle if it did blow, and as there is no testimony to suggest that his hearing was impaired, his testimony amounted to direct and not negative evidence. Some of the witnesses for the plaintiff were uncertain whether they heard the train blow on this occasion, hut Miss Yarbrough, a witness for the plaintiff, testified positively that she was a passenger on the train, and “that the whistle did not blow on approaching that crossing 400 yards east. It did not blow and did not' keep blowing as it approached Shepherd’s crossing. It did not blow until it passed the crossing and began to slow up after it struck the people. It did not check and did not continue to check from the point 400 yards east of the crossing. I did not detect any cessation of speed. The train ran about 250 yards after it struck the people. . . The whistle could not have blown and I not heard it before it got to the crossing. I am sure of that. . . I am positive it did not blow before crossing over the crossing. The train was running pretty fast.” Mrs. Bean testified that she was on the train on this occasion, and that, “the whistle was not blown 400 yards east of the crossing, nor did it blow or keep blowing as it approached the crossing, nor «check or keep checking its speed. I am certain it did not. . . I would have heard the whistle blow if it had blown, and I would have noticed the train cheek if it had checked.” Miss Cantrell testified for the plaintiff to the same effect as the two witnesses last named, and added: “I know the train did not blow and did not check. I know it because I know it, and because I did not notice it. I will not tell the jury that it might have blown and I did not hear it. I am certain, if it had blown, I would have heard it. The train was running very fast.”

A bare reference to this testimony sufficiently demonstrates that there was positive evidence that the whistle of the locomotive was not blown, nor the speed of the engine cheeked, as the train approached the crossing; and it was the privilege of the jury to accept the testimony of these witnesses in preference of that of the witnesses for the defendant.

Again, it may be mentioned specially, in connection with what is later said in this opinion in reference to this point, that while the testimony of a. civil engineer, who was sworn in behalf of the defendant, tended to show that the view to the right in approaching the crossing where the collision occurred was not obstructed so greatly as was indicated by the testimony of the plaintiff, it was the privilege of the jury to accept the testimony of the plaintiff in preference; and it likewise appears that the testimony of the witness Williams materially corroborated the plaintiff’s testimony. So that there was evidence tending to support the plaintiff’s contention that he could not have seen the approaching train had he looked before he reached the track at the crossing on account of various intervening obstructions, and therefore his failure to make any effort to see down the track on the right side, especially in view of the other circumstances hereafter discussed, did not amount to a want of ordinary care on his part. Not only did the plaintiff deny that he was intoxicated at the time of the collision, but several witnesses testified that they had assisted in removing him from the scene of the collision while he was unconscious, and that they noticed no odor of liquor or intoxicants about him, and no evidence of whisky on his person or clothing. There was likewise some testimony to the effect that the odor of whisky was noticeable about the plaintiff after he was injured; so that a jury issue was again presented on this point.

The record does not disclose whether the train which collided with the plaintiff’s automobile was engaged in interstate commerce or not, and no question as to the constitutionality of the “blow-post law” (Civil Code, § 2675) is raised in this case. This section has been held not violative of the interstate-commerce clause of the Federal constitution. Southern Railway Co. v. Grizzle, 131 Ga. 287 (62 S. E. 177); Southern R. Co. v. King, 217 U. S. 524 (30 Sup. Ct. 594, 54 L. ed. 868). A recent ruling involving the constitutionality of this law as applied to railway trains while engaged in interstate commerce has been made by the United States • Supreme Court (37 Sup. Ct. R. 640) in the case of Seaboard AirLine Ry. v. Blackwell, 16 Ga. App. 504 (85 S. E. 686), which was certified to the Supreme Court of Georgia by the Court of Appeals, and was decided by this court in accordance with instructions given by the Supreme Court (143 Ga. 237); but it is unnecessary to discuss that ruling, since the point is not presented in the present ease.

Failure to comply with the “hlow-post law” is negligence per se, if such failure is the proximate cause of the injury. Southern Railway Co. v. Combs, 124 Ga. 1004, 1013 (53 S. E. 508); Georgia & Alabama Ry. Co. v. Cook, 114 Ga. 760 (40 S. E. 718); Western & Atlantic R. Co. v. Strickland, 114 Ga. 133 (39 S. E. 943); Central Railroad Co. v. Golden, 93 Ga. 510 (21 S. E. 68); Western & Atlantic R. Co. v. Young, 81 Ga. 397 (7 S. E. 912); Central Railroad v. Smith, 78 Ga. 694 (3 S. E. 397); Western & Atlantic R. Co. v. Jones, 65 Ga. 631; Augusta and Savannah R. Co. v. McElmurry, 24 Ga. 75. Nevertheless, one attempting to pass over a railroad-track' at a public crossing is not excused from the exercise of ordinary care to avoid injury to himself or to escape the consequences resulting from failure on the part of the defendant to observe the requirements of the statute, after such failure is discovered by him. A traveler approaching such a crossing who fails to use the amount of care ordinarily exercised by a prudent person is not thereby precluded from recovery if, after discovering the violation of the “blow-post law” by the defendant, he uses ordinary care to escape the injury. Comer v. Barfield, 102 Ga. 485 (31 S. E. 89); G., C. & N. Ry. Co. v. Mathews, 116 Ga. 424 (42 S. E. 771); Williams v. Southern Ry. Co., 126 Ga. 710 (55 S. E. 948); Central of Georgia Ry. Co. v. North, 129 Ga. 106 (58 S. E. 647); L. & N. Railroad Co. v. Names, 135 Ga. 67 (3) (68 S. E. 805).

It is earnestly contended by learned counsel for the plaintiff In error that the evidence in this case clearly indicates that the proximate cause of the injury was the failure on the part of the plaintiff to exercise ordinary care in approaching the public crossing. It is insisted that the testimony from the plaintiff himself clearly establishes this contention. The plaintiff testified that he was hired on the day of the injury by one Downs to carry Downs and two women out riding, and (without following the various movements of the automobile) that when he approached the public crossing. over the tracks of the defendant he had reduced his speed and was traveling at not more than four or five miles per hour; that he heard no whistle and did not hear the train approaching; that just before he reached the track he thought about the train, as “it came along about that time in the evening,” took out his watch, and observed the time of day, and saw that the train should have already passed and reached the station in Columbus 25 minutes before; that he “knew there was no danger coming from that way” (the direction from which the train came).,- and he looked in the other direction, towards town, as “the first time [he] could see was towards town,” and he saw smoke from the switch-engine in that direction; that his attention was naturally directed towards the left, and he saw that he had plenty of time to get across, ahead of any train on that-side, and, as he “started up on the track,” he “looked down the other way [towards the right],” and as he did the train was immediately upon him, struck his automobile, knocked him out, and rendered him unconscious, etc. He testified that on the approach to the crossing where the collision occurred there were “a number of negro houses on the right-hand side, and a fence and some trees and some telegraph poles. The fence runs parallel with the road going right up to the railroad-track. On the right-hand side the fence runs up within 25 feet of the railroad-track, and then makes a corner, and then goes right on alongside of the right of way, running down the track; and there are houses there and some bank. The train kind of comes out of a not very deep cut. You have got to get very near right on the track before you see down the track. A man would have to be within four or five feet of the railroad if he could tell anything about an engine coming west [from the right] on the track and tell which track it was coming on at that point, whether it was the Seaboard Air-Line of some other track, because four hundred yards back that way the road is curving, and you would have to be right up there to tell so you could see it,'and see it was on the outside track. There are four or five other railroad-tracks there north of the Seaboard AirLine track. The trees and poles and fences would cut you off from seeing down the track as you approach the crossing. . . As I approached the track I was watching the switch-engine up the track. . . One could see towards the west but not the east [to the right].” On cross-examination he said that he looked at his watch and it was a quarter to six o’clock, and he knew the train was to arrive in Columbus at 5:30; that he relied on his watch and was satisfied that the train had been gone 25 minutes, though he did not rely on his watch “for crossing the track;” that he did not , look to the right, because he relied on his watch, but “did look to the right as quick as [he] got where [he] could;” that it would have been useless to look to the right, as the view was obstructed, but he listened; that he did not look to the right, “because the switch:engine was up to the left. . . I was watching it, and I thought the other train had gone by, is why I did not look to the right. I was watching to see which way the switch-engine was coming. I saw it was coming back towards me. I looked to the right when I started up on the track. I said in the Knight case [growing out of the same occurrence] that I looked carelessly to the right. I meant casually.” He testified on the redirect examination that he was sober when he approached the crossing, that he was not a drinking man, had never been intoxicated, and did not drink whisky.

The plaintiff in error contends that the only.legitimate deduction that could be drawn from this testimony of the plaintiff is that he failed to exercise ordinary care when approaching the railroad-track, in that he did not look in the direction from which the train came, for had he done so he would have discovered its approach and would have been able to avoid the injury. It is unnecessary to do more than suggest that whether or not the plaintiff was in the exercise of ordinary care, under the circumstances detailed by the evidence, in failing to look towards the right, was a question for determination by the jury, and could only become purely a question of law where but one possible inference could be drawn from the facts in proof. It will be observed that the plaintiff mentioned the fact that the smoke of a switch-engine was plainly visible on his left as he approached the track, and that his attention was directed to it in determining whether or not he had sufficient time to cross before any train from that direction could reach him, and that he did not look towards the right until he drove upon the track because, according to his watch and to the regular schedule, the passenger-train coming from that direction must have passed already some 25 minutes before, and he therefore had no reason to apprehend the possibility of danger from this side. There was some testimony besides that of the civil engineer, to the effect that the view to the right was not so obstructed by intervening, objects as to prevent a person approaching this crossing, as the plaintiff did, from seeing a train coming from that direction along this track for some distance before it reached the crossing, but the testimony of the plaintiff was positive that his view on the right was ob- „ structed by such objects within a short distance of the track itself, and that this in part accounted for his failure to look towards the right until he was upon the track itself; that “it would have been no use to look to the right,” but he did listen, and did ñot hear the approach of the train nor any whistle blown. It was held in Wrightsville & Tennille R. Co. v. Gornto, 129 Ga. 204 (58 S. E. 769), that in a suit to recover damages for the homicide of a person killed upon a public railroad crossing .by a railroad locomotive that “it is not error to instruct the jury that if they find that, at the time of the occurrence in question, the train of the defendant company was not running on schedule time, they can take that circumstance into consideration in determining whether or not the deceased had reason to apprehend danger at such time.” The engineer in this case, who testified for the defendant, himself admitted that the train was 25 minutes later than its schedule time.

Under so much of the testimony as is recited or referred to above, it was not so clearly made to appear that the plaintiff failed to exercise ordinary care in looking to the right sooner than he did, or in exercising proper diligence thereafter in seeking to avoid the consequences of the negligence per se on the part of the defendant company, as to require as a matter of law a verdict in favor of the defendant; but undoubtedly, under some testimony, which the jury had the right to accept as correct, the plaintiff approached the crossing at a slow rate of speed, knowing, from an inspection of his watch at the time, that according to its regular schedule the passenger-train which ordinarily approached this crossing “about” this hour from his right side had passed that point 25 minutes before; his attention, as he more nearly approached the track, being directed towards the left on account of the visible presence of smoke in that direction, which suggested the possibility of an approaching train; and he was unable to see up the track on his right side, on account of houses, telephone posts, and other obstructions, until almost upon the track itself; all of which would legitimately support the inference that the plaintiff did not deliberately place himself in a perilous position without the exercise of ordinary care for his own protection. This case on its facts is entirely distinct from that large class of cases, to be found in the reports of the Supreme Court and of this court, like the case of Thomas v. Central of Georgia Ry. Co., 121 Ga. 38 (48 S. E. 683), and several cases therein cited, where, as in many other decisions of the Supreme Court and of this court, it is held that one who deliberately goes upon a railroad-track in front of an approaching train, thinking he can cross before the train reaches him, and miscalculates its speed, can not recover for injuries resulting from being run down by the train, notwithstanding the company’s servants may have been negligent in running at a high rate, of speed at that particular point, or in failing to check the speed of the train at a public crossing. Here there was no question of miscalculation, after the plaintiff knew of the approach of the' train; for, according to the testimony of the plaintiff, he not only did not voluntarily attempt to cross in front of a moving train? miscalculating its speed, but was wholly unaware of the approach of the train until it was actually upon him, or, as he graphically described it, until it “looked like the train fell out of the sky”—so close was it as it towered above him at the moment of the collision.

It is insisted by counsel for the plaintiff in error that there is a strong analogy between this case and the case of Athens Ry. & El. Co. v. McKinney, 16 Ga. App. 741 (86 S. E. 83), where a verdict for the plaintiff was set aside because his conduct was held to be the proximate cause of the accident. Under the well-established rule stated in Americus, Preston & Lumpkin Railroad Co. v. Luckie, 87 Ga. 6 (13 S. E. 105), “The plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof shows he could by ordinary care, after the negligence of the defendant began, or was existing, have avoided the consequences to himself of that negligence.” In the case of Athens Ry. & El. Co. v. McKinney, supra, it was held that “Ordinarily it is true, that whether or not-the plaintiff could have avoided the consequences of the negligence of the defendant by the exercise of ordinary care, or how far he himself contributed to the injury, are questions for determination by the jury. . . But where it is apparent, from the evidence of the plaintiff himself [italics ours] and from all of the surrounding circumstances in proof, that by the exercise of ordinary care the plaintiff could have avoided the consequences to himself caused by the defendant’s negligence, and there is nothing in the record to the contrary [italics ours], the propriety of a finding by the jury for or against the plaintiff becomes a question of law for determination by the court.” It will be noted that in the ruling last quoted, which was invoked by counsel for the plaintiff in error in this case, it is said that the propriety of a finding by the jury for or against the plaintiff, on the question whether or not the plaintiff could have avoided the consequences of the negligence of the defendant by the exercise of ordinary care, becomes a question of law for determination by the court “where it is apparent from the evidence of the plaintiff himself and from all of the surroundidg circumstances in proof, that by the exercise of ordinary care the plaintiff could have avoided the consequences to himself caused by the defendant’s negligence, and there is nothing in the record to the contrary.” The facts in the Me- Kinney case, supra, are quite different from the facts in the instant case. In that case the plaintiff saw the approaching electric-car, but underestimated its speed, as it was running faster than he had ever seen it move along that street. He was proceeding along the track itself “astride” of the right-hand rail, in advance of the car, and admitted that if he had turned to the right side, as he should have done (as it was nearer), instead of the left, when he attempted to leave the railway-track, he could have reached the right side of the street without coming into collision with the street-ear, and could have crossed back to the left side of the street after the ear had passed, and thus safely approached his destination. There was no obstruction in the way to prevent his turning to the right, and no emergency of any kind to require him to take the longer and more dangerous course in removing himself from the railway-track and from the hazardous position he occupied when he first discovered the approaching car. According to his own testimony, the plaintiff in that case deliberately attempted to remove himself from the car-track in the more hazardous way because he underestimated the speed at which he was going, whereas if he had turned in the other direction “no injury would have occurred and no loss would have resulted to him except the loss of time consequent upon his driving from the middle of the block up to the next cross-street, and there turning in behind the street-car, and, after it had passed, coming on down the opposite side of the street to the hospital.” In this case it can not be said, as in the McKinney ease, that “it is apparent, from the evidence of’the plaintiff himself and from all of the surrounding circumstances in proof, that by the exercise of' ordinary care the plaifitiff could have avoided the consequences to himself caused by the defendant’s negligence, and there is nothing in the record to the contrary;” for the evidence of the plaintiff does not compel the conclusion that by the exercise of ordinary care he could have avoided the collision.

Furthermore, in the decision in Wrightsville & Tennille R. Co. v. Gornto, supra, it was said.that “if the train was not on schedule time, surely this fact was a circumstance which the jury might properly consider in determining whether the husband of plaintiff, in approaching the crossing, had reason to apprehend danger.” The plaintiff not only had the presence of the switch-engine on that side as a sufficient cause to direct Ms attention especially down the track on his left side, but, according to his testimony, his view on the right side was obstructed, and he did not essay to cross the tracks until after he had deliberately examined his watch and ascertained that according to the watch (which kept correct time) the train must have already passed; and in addition the engineer admitted that- the train was 25 minutes late at the time the collision occurred. The jury could have inferred from his testimony and from the other circumstances in the case that the plaintiff had no reason to apprehend the approach of danger from his right side at the time he neared the railroad track, and therefore that he exercised the care of an ordinarily prudent person, under all the circumstances, in attempting to cross the tracks without looking for an approaching engine on his right. At all events, there is enough to sustain a finding that the plaintiff was in the exercise of ordinary care, and it can not be said as a matter of law that the undisputed evidence and all the inferences properly deducible therefrom necessarily established the contrary conclusion. The case of Ga. So. & Fla. Ry. Co. v. Adeeb, 15 Ga. App. 831 (84 S. E. 323), cited by counsel for the plaintiff in error, is clearly not in point, as will appear from an examination of the facts in that case.

The amendment to the motion for a new trial presents the two following grounds, which amount merely to an amplification of the general grounds, to wit: “1. The verdict is contrary to law, in that it appears from the testimony of the plaintiff himself that his own conduct in failing to look to the right as he approached the railroad track was the proximate cause of the injury. 2. The verdict is contrary to law because by exercising ordinary care, to wit, looking to the right as he approached the track, the plaintiff could have avoided the consequences of the negligence (if any) on the part of the defendant.” The 3d and sole remaining ground of the amendment to the motion for a new trial complains of the refusal of the court to charge the jury as follows: "Although the jury may believe that the railroad company was guilty of negligence in not observing the law regulating the approach to the crossing, if from the evidence you should believe that after that' negligence began it was in the 'power of Hollis to have avoided the consequences of such negligence, by the exercise of ordinary care on his part, he could not recover.” It is unnecessary to discuss the first two grounds, as what has been said above sufficiently indicates the lack of substantial merit therein. Neither is there any merit in the 3d ground, since it appears, from an inspection of the record, that the trial judge repeatedly gave instructions presenting the legal principle embodied in this request, and more than once in a form more favorable to the defendant than the requested instruction. At the very outset the court instructed the jury that “the plaintiff:, Mr. Hollis, can not recover, would have no legal right to recover, if the company shall make it appear that its agents have exercised all ordinary care and diligence, or if the injury to Mr. Hollis was done by his own consent, or if the injury was caused by his own negligence, or if both parties were at fault, and Mr. Hollis, by the use of ordinary care, could have avoided the consequences to himself caused by the defendant’s negligence, - if the defendant was negligent.” Again, the court instructed the-jury, after giving them the law as to contributory negligence and diminution of the damages in proportion to the amount of default attributable to the plaintiff, that “if, however, he could have avoided the consequences of. the defendant’s negligence, if the defendant was negligent, by the exercise of ordinary care, he could in no event recover;” without any qualification as to the time when the plaintiff should begin to exercise ordinary care to escape the consequences of the defendant’s negligence. Then, after fully informing the jury as to the meaning of the term ordinary care, and instructing them that the duty to exercise ordinary care to avoid injury rested upon Hollis, and the duty to exercise ordinary care to prevent injuring persons that might be upon the railroad crossing devolved upon the railroad company, and after giving in charge the law requiring the engineer in control of the defendant’s locomotive to blow the whistle and cheek and keep checking the speed of his train so as to stop in time should any person or thing be crossing the railroad-track at a public crossing, the court gave the following instructions: “This rule which requires one to avoid the consequences of another’s negligence doesn’t apply until he sees the danger, or has reason to apprehend it, and when there is sufficient interval of time to guard against it. He is not bound to anticipate negligence when the law commands diligence for his protection at the hands of another. The plaintiff in this case was not bound to anticipate negligence, and he was not bound to exercise the degree of care required of him by law until the negligence of the defendant railway company was apparent, or would have been apparent by the exercise of ordinary care upon the part of the plaintiff, Mr. Hollis. Now, if you should believe, from the evidence, that if, by the exercise of ordinary care upon his part, the danger of the railroad company’s train (whether its officers, engineers, etc., were negligent or not) would have been apparent, then the law would construe that it was apparent to him, and the duty, as a matter of law, would rest upon him to exercise ordinary care to avoid injury. Now, the railroad company, upon its part, sets up two defenses in this case, to wit, first: that the plaintiff, Hollis, caused the injury by his own negligence; and second, that even if the company, the railroad company, was negligent, that the plaintiff, Hollis, could have avoided the injury by the exercise of ordinary care. The court expresses no view upon that. That is the contention of the defendant. Look to all the evidence and circumstances of the ease, and seek the truth. If the plaintiff, Mr. Hollis, himself, caused the injury, he can not recover. If, by the exercise of ordinary care on the part of the plaintiff, Hollis, he could have avoided the effect of any negligence on the part of the defendant, if the defendant was negligent, then in that case the plaintiff, Mr. Hollis, could not recover.” And still further, with only a short paragraph intervening, the court instructed the jury as follows: "If, from the evidence, you believe that the plaintiff, Mr. Hollis, could have avoided the consequences of the negligence of the defendant, if you believe that the defendant was negligent, by the exercise of ordinary care on his part, and he failed to exercise such ordinary care, then he could not. recover, although the negligence of the defendant, if there was negligence, may not have been actually discovered by the plaintiff, Mr. Hollis, but might have been discovered by him had he exercised ordinary care. The court further charges you, that if the railroad was negligent per se, or otherwise, if that negligence was not the proximate cause of the injury to the plaintiff, then he could not recover.”

It appears' to us, from an examination of the charge as a whole, that the plaintiff in error can not reasonably contend that the doctrine set forth in the written request to charge, which the court refused, was not fully, amply, and repeatedly given to the jury in the several portions quoted above.

■ The court charged the jury as to the duty of one approaching a railroad crossing in an automobile, to operate his machine at a rate of speed not greater than six miles per hour, and to have the machine under control, and that if negligent in this manner and if such negligence was the cause of the injury, the plaintiff could not recover. And generally the charge of the court so fairly presented the issues in the case that the only exception taken as to the charge .was that the trial judge declined to put in the language of counsel, as suggested by their written request, the doctrine repeatedly submitted to the jury throughout the charge.

We therefore think the court did not err in refusing the motion for a new trial.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
      8292.

    Martin, guardian, etc., v. Moore, guardian, etc.
   Wade, C. J.

1. This was a petition for certiorari to review a judgment of the court of ordinary, declining to remove the guardian of a minor child upon the alleged ground that another person (the plaintiff) had previously been appointed and had duly qualified as such guardian. The answer of the ordinary distinctly asserted that no record showing the previous appointment of the plaintiff as guardian, or her qualification under such appointment, was tendered in evidence on the trial of the issue before him. The jury found against the plaintiff’s traverse to this part of the answer; and their finding was conclusive on the question of fact.

2. The court did not err in declining to give to the jury the lengthy requested charge submitted in writing. The fact that counsel representing the guardian resisting removal did not at the trial before the ordinary raise the point that the plaintiff had failed to show her appointment and qualification as guardian did not prevent the ordinary from rendering a judgment adverse to the plaintiff, on account of her failure to establish by proof necessary averments, nor did it thereafter estop the defendant from urging in the superior court, as a reason why the judgment of the ordinazy was correct, the defendant’s failure to carry successfully the burden of proof, by evidence in support of all essential allegations. The requested charge included an instruction to the contrary of this ruling, and besides was argumentative, and in fact would have amounted to a direction of a verdict on the issue raised by the traverse.

(a) It was not a question of' latitude as to testimony n®t strictly admissible but wbicb might nevertheless be considered in the absence of objection, but there was a lack of the proof necessary to establish the plaintiff’s case. The plaintiff in certiorari attacked the judgment of the ordinary as being contrary to the evidence, and the answer of the ordinary (sustained by the jury on the issue raised by a traverse) showed that at the trial there was a lack of proof to support any other judgment than that rendered. The judgment being right under the evidence, or on account of the lack of evidence, it is entirely immaterial whether counsel for the defendant failed to point out the deficiency at the trial or before the judgment was rendered; nor did their insistence on such deficiency when the certiorari reviewing the judgment was argued amount to the raising of a new point for the first time in a reviewing court.

Decided July 23, 1917.

Rehearing denied August 2, 1917.

Certiorari; from Emanuel superior court—Judge Hardeman. April 19, 1916.

Twiggs & Gazan, for plaintiff.

Saffold & Jordan,. Walter F. Grey, for defendant.

3. The court did not err in overruling the certiorari.

Judgment affirmed.

George and Luke, JJ., concur.


author: Jenkins, J.

text:
    8158.
    BLOODWORTH et al. v. WOODWARD.
    The plea of failure of consideration was supported by evidence, from which it appeared that the consideration of the note sued on was a certain number of shares of stock, never delivered, and that the contract between the original parties to the note was rescinded; and the evidence authorized a finding that the plaintiff (to whom the note had been transferred under an agreement that when paid he was to furnish that amount of stock to the party from whom he obtained the note) was not a bona fide holder without notice. Under the evidence the court erred in directing a verdict for the plaintiff.
    Decided July 23, 1917.
    Complaint; from Baldwin superior court—Judge Park. May 1, 1916.

      Sibley & Sibley, Livingston Kenan, for plaintiffs in error.

      Allen & Pottle, contra.
   Jenkins, J.

It appears, from the evidence, that the note sued on was given by Bloodworth to Lawrence for the purchase of certain stock in a corporation whose stock Lawrence was then engaged in selling. Lawrence assigned the note to Stewart, who was also engaged in selling stock of the corporation. Stewart indorsed and delivered over the note to Woodward, the plaintiff in this suit, who was an officer of the corporation and owner of such an amount of its stock as was contemplated by the purchase. Woodward, upon the transfer of the note to him, indorsed the stock to Stewart, who immediately and as a part of the same transaction reassigned it to Woodward, under the following written understanding: “I am handing you herewith certificate number 253 for 150 shares of the capital stock of the Universal Ice Co., and indorsed -in blank by me. It is understood, that you are to hold this certificate as security, against the notes of J. 0. Bloodworth, and, in the event Mr. Bloodworth does not pay the notes, you'are to keep this-certificate and turn the notes over to me; or, if you so elect, you may have the privilege of forcing collection of the notes; in which ‘event you will turn the certificate back to me.” In defense to the suit by Woodward, Bloodworth, as principal, and Lawrence, as indorser, admitted the execution of the note, and pleaded failure of consideration, in that the stock had never been delivered, and also that the contract of purchase between Bloodworth and Lawrence had been rescinded. It was further pleaded that Woodward was not a bona fide holder of the note; that Lawrence was simply a bailee of the note with authority to hold it until delivery of the stock, and that Stewart and Woodward had knowledge of this fact. There was evidence going to show the subsequent rescission between Bloodworth ánd Lawrence, and also that the stock had not been delivered to Bloodworth. The trial judge, treating Woodward as a bona fide holder of the note, directed a verdict for the plaintiff, in the amount of the principal, interest, and attorney’s fees sued for.

It is contended by the defendants that the plaintiff should not' be treated as a bona fide purchaser of the note, for the following reasons: (1) Because he had actual notice of the fact that the stock had not been delivered to Bloodworth. Stewart, testifying, for the defendants, said: “Mr. Woodward transferred to me this 'stock, and I transferred it back to him, and he was to keep it with the understanding that when these notes were paid he was to deliver this stock to me to be delivered to Bloodworth;” also: “Mr. Woodward then had notice, at the time this letter was written, and there was to be no sale of the stock by him and no absolute liability on his part unless Bloodworth paid these notes. He was going to sell the stock, and was to part with it when the notes were paid. Then, at the time I turned it over to him, he knew it was for stock that had not been paid for and had not been delivered to Bloodworth.” (2) Because the evidence shows that the plaintiff paid no value for the note so assigned to him. The evidence of Stewart along this line was as follows: “I did not consider that Woodward got the title to these notes. I indorsed them to him and delivered them to him. The agreement was that he should take these notes, and, if they were paid, then he was to deliver this 150 shares of stock; and if the notes were not paid, then he was not to deliver the stock.” -This witness further testified as follows: “He [Woodward] was going to sell the stock and was to part with it when the notes were paid. Then, at the time I turned it over to him, he knew it was for stock that had not been paid for and had not been delivered to Bloodworth. I never heard of him delivering the stock to Bloodworth, he never did it through me.” (3) Because, under the terms of the written .agreement already quoted, whereby the note was assigned to Woodward and the stock reassigned to him, the purchase of the note was not fully consummated until after the note became due, and therefore the purchaser of the note occupied the same position,’ relatively to the rights of Bloodworth, that he would have occupied had the note been delivered after its maturity. (4) Because the circumstances under which the purchase of the note was made by Woodward were sufficient to put a reasonable man on inquiry as to the probable defenses thereto; and the defendants contend that this was a question which should have been determined by the jury.

On the other hand, the plaintiff contends that at the time of his purchase of the note there was nothing to disclose or suggest to him any defense thereto, and that under the terms of the transfer he became charged with the absolute legal obligation to deliver the stock to Stewart on payment of the note, and that until then he held the stock merely as security for its payment, and that, since the stock at that time had a value, he would, in consequence of such obligation, properly occupy the position of a bona fide purchaser of the note. He contends that there was an actual sale and delivery of the stock by himself to Bloodworth, through Stewart, and that his subsequent holding of the same as security only could not affect his position as a bona fide purchaser of the note.

It is manifest, from the portions of the evidence we have quoted, that the plaintiff was necessarily aware, when he took the note, that the consideration therefor was the purchase by Bloodworth of the corporate stock mentioned, that this stock had not in fact been delivered, and that his own stock in the corporation was intended, under his agreement with Stewart, to supply the sole consideration of the note. While the defendants, in their pleas, clearly imply that the intention of the original agreement was the purchase of new or treasury stock (since it is denied that the same had ever been “issued” or delivered in accordance with the contract of purchase), still it does not appear that the defendants offered to show by the testimony that such was the case and that the holder had such knowledge. If such had been done, we can see how no compliance with the contract could be claimed upon the ground that a transferee of the note offered stock which had already been issued and taken, since it is presumably possible that Bloodworth might have desired to subscribe because of the very fact that Woodward was a stockholder; and furthermore, the issuance and sale of additional stock by the corporation might, in his estimation, have enhanced the value of the whole, and this might- have entered into his willingness to buy. Therefore, the question, as we see it, resolves itself into the question whether or not the delivery of such stock by Woodward to the first transferee of the note, Stewart, is equivalent to a delivery or offer of delivery to Bloodworth. The defendants, in their pleas, deny knowledge of the fact that Woodward had obtained possession of the note prior to suit thereon, and therefore claim ignorance of such transfer of the stock by Stewart. There appears, however, no testimony in the record substantiating this claim. It does appear, however, that Woodward knew from the beginning that the delivery of his stock was to constitute the sole consideration of the note, and it is not disputed that a subsequent rescission of the contract of purchase and sale was had between Bloodworth and Lawrence, the original contracting parties. After it was clearly made to appear that, so far as the original contracting parties were concerned, there was a rescission, and that when the transfer of the note was taken by Woodward he knew that his own stock was to supply the sole consideration of the note, was it not incumbent on him to show at the trial that the defendants knew that he stood ready to supply the consideration which constituted the only basis of the note?

It is a well-settled principle of law that knowledge on the part of a bona fide holder of a negotiable note that it was given in consideration of an executory contract or agreement of the payee, even though the consideration may be expressed in the instrument itself, will not deprive the indorsee of the character of a bona fide holder, unless he had additional notice of the breach of such agreement by the payee; and it has been often held that such a transferee is not bound to make inquiry as to whether or not there has been such a failure. Bank of Commerce v. Barrett, 38 Ga. 126 (95 Am. D. 384); Post v. Abbeville & Waycross Railroad Co., 99 Ga. 232 (25 S. E. 405); Citizens Bank of Vidalia v. Greene, 12 Ga. App. 49 (76 S. E. 795); Simmons v. Council, 5 Ga. App. 386 (63 S. E. 238); Brooks v. Floyd, 12 Ga. App. 530 (77 S. E. 877); Fryer v. State, 12 Ga. App. 533 (77 S. E. 830); McMillan v. First National Bank, 13 Ga. App. 23 (78 S. E. 734); Hudson v. Best, 104 Ga. 131 (30 S. E. 688); 3 R. C. L. 1067, § 273. Still, in the present ease, irrespective of the subsequent rescission between Blood-worth and Lawrence, Woodward not only knew that the consideration of the note was the purchase of the corporate stock, which had not been delivered, but he had further notice that Lawrenc^ would not complete the terms of the sale by supplying the consideration thereof. It is also true that if there had been no rescission between the original parties, and if this were a contest between Bloodworth and Lawrence themselves, if the agreement between them was silent as to when the certificates were to be delivered, the law would presume that this would be done on payment of the note; and it would be no defense to such a suit that no tender of the stock was made prior to the maturity of the note. Moore v. Garland, 78 Ga. 764 (3 S. E. 654); Prontaut v. Lorick, 17 Ga. App. 495 (87 S. E. 716). However, under the record in this case, we must assume that Bloodworth, subsequent to the rescission, considered that he' was no longer liable on the note; and it appears that Woodward waited more than four months after its maturity before bringing suit thereon. The first disclosure of any claim of liability on the note appears to be the notice of liability for attorney’s fees, served on defendants by attorneys for the Woodward Lumber Company nearly four months subsequent to its maturity. If Woodward, as the ultimate transferee and owner of the note, had the right to substitute himself as the proper person to supply the consideration of the note, which he knew had otherwise failed, it would seem that it was at least incumbent upon him to show that he had supplied, or stood ready, able, and willing to supply, the consideration called for, and within the time embraced by the contract of purchase. The fact that the stock might become worthless or deteriorate in value, as in fact appears to have happened in this case, is sufficient reason why the purchaser of the note, with the notice herein set forth, should have complied with this obligation on his part within the period contemplated by the terms of the sale. The fact that Woodward, without the knowledge of Bloodworth, may have unconditionally obligated himself to Stewart,- who was himself only a transferee, to deliver the stock to the latter on payment of the note by Bloodworth would not constitute delivery to Bloodworth or charge him with notice of Woodward’s readiness so to do. For these reasons, we think it was error to direct a verdict in favor of the plaintiff.

Judgment reversed.

Broyles, P. J., concurs. Bloodworth, J., disqualified.


text:
    8225.
    Thigpen v. Thompson.
    Decided July 23, 1917.
   Jenkins, J.

Thigpen was indebted both to the firm of Riner Mercantile Company, of whieh J. W. Thompson was manager, on a note for supplies furnished him for his tenants, and to Thompson himself on a note given Thompson for the purchase price of a mule sold Thigpen by Thompson individually. The mule note was the basis of the present suit, which was brought by Thompson. By agreement- this suit and a suit brought by the Riner Mercantile Company on its note were consolidated and tried together. To the Thompson suit the defendant pleaded payment in the amount of $164, which he alleged was paid to Thompson with direction that it be applied on the mule note. At the trial the defendant testified to such payment and direction, and introduced in • evidence a cancelled check by which it was claimed the payment was made, and which was originally payable to Riner Mercantile Company, and was indorsed “Riner Mercantile Company, by J. W. Thompson, Mgr.” The court directed a verdict for the plaintiff in the Thompson suit, after which the trial proceeded under the pleadings in the-Riner Mercantile Company’s suit. Exceptions were taken to the direction of the verdict in the Thompson suit. Meld, that there was no error in directing the verdict.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.

Complaint; from Laurens superior court—Judge Kent. April 28, 1916.

Camp & Twitty, for plaintiff in error.


text:
    8229.
    Thigpen v. Riner Mercantile Co.
    Decided July 23, 1917.
    Complaint; from Laurens superior court—Judge Kent. May 29, 1916.

      Camp & Twitty, for plaintiff in error.

      E. L. Stephens, T. P. Stephens, contra.
   Jenkins, J.

The evidence authorized the verdict, and the refusal of the trial judge to grant a new trial 'was not erroneous. It is argued in the brief of counsel for plaintiff in error that the evidence for the plaintiff showed that the defendant was indebted to the-plaintiff as follows: $238.24 on open account, $25 on note, $40 on another, and $60 on another; but the evidence for the plaintiff really showed that the defendant was indebted to it on still another and additional note of $60; ■ which reconciles the verdict to the evidence.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


author: Blo on worth, J.

text:
    8290.
    CRAWFORD v. CITIZENS & SOUTHERN BANK.
    1. The fact that the maker of a promissory note payable to and indorsed by the maker was not given the statutory notice as to attorney’s fees required by § 4252 of the Civil Code of 1910, and was not sued with the other indorsers of the note, was no reason why judgment for such fees should not be rendered against those indorsers who were served with such notice and sued.
    2. It is only when a conversation containing an admission is given in evidence that it is the right of the other party to introduce “the whole admission and all the conversation connected therewith.” Matters wholly disconnected from the admission first offered are not admissible, even though they may be a part of such conversation. •
    3. “One who signs or indorses a note as surety can not- in defense to an action thereon, either by the innocent payee or any other bona fide holder for value, set up that the principal maker, to whom he intrusted the note, delivered it in violation of a condition that a certain other person or persons should first sign or indorse it.”

      4. Under the facts of this case the plea filed by certain indorsers, that they were discharged from liability, because, for a valuable consideration, there was an extension of time to one of their cosureties, can not be sustained.

      5. The testimony of the witness Sharpe, referred to in the bill of excep-' tions, was hearsay, and was properly excluded.
    6. “The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most .favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded.”
    Decided July 23, 1917.
    Complaint; from Toombs superior court—Judge Hardeman. December 11, 1916.

      E. J. Giles, Hines & Jordan, for plaintiff in error.

      W. L. Wilson, Adams & Adams, contra.
   Blo on worth, J.

The Citizens & Southern Bank filed a suit in which it alleged, that J. W. A. Crawford, T. J. Poe, S. A. Mc-Closkey, T. R. Lee, R. L. Sharpe, and James McNatt were indebted to it on a certain note for $10,000, payable February 1, 1912, on which was credited $6,103.34 on the first of March, 1913. The note was made by the Yidalia Coffin & Casket Company, was payable to the order of “ourselves,” and'was indorsed by the Yidalia Coffin & Casket Company and by the-above-named defendants. It was alleged that the Yidalia Coffin & Casket Company had become insolvent, and had been placed in the hands of a receiver, and its assets administered, and that the said concern had ceased to do business; and the plaintiff prayed judgment against the above-named defendants as indorsers. Defendants T. J. Poe, T. R. Lee, and R. L. Sharpe at the appearance term of the court filed a plea in which they denied indebtedness to the plaintiff on said note for any amount, denied liability for attorney’s fees, because notice as to attorney’s fees “was not- given to the Yidalia Coffin & Casket Company, one of the joint obligors on said note; and they say they are not liable for said attorney’s fees without suit on said note against said company and without notice to it.” Defendants further pleaded that they were accommodation indorsers, and that “at or about the maturity of said note, to wit, February 1st, 1912, the plaintiff, for a valuable consideration, at the instance and request of the said Yidalia Coffin & Casket Company, the maker of said note, and James McNatt, one of said accommodation indorsers and sureties on said note, without the knowledge and consent of these defendants, extended the payment of said note from February 1st, 1912, to May 1st, 1912;' and . that, by said extension of the time of the payment for the sued upon note in this case by the plaintiff for a valuable consideration, for said time and period, they were discharged from all liability on said note.” Defendants also pleaded that they signed the note sued on “under an agreement and resolution of the board of directors of said company that said note was not to- be traded and discounted [until endorsed?] by all the directors of said company; that in violation of said agreement, which was well known to said James McNatt, one of said indorsers, said company traded said note without the said note being indorsed by two of the directors of said company, to wit, W. L. Tidwell and Ira T. McLemore, who were then and still are amply solvent; that said James McNatt, one of said accommodation' indorsers and sureties, is now the owner and holder of said note, and that the plaintiff is not now and was not at the time of the bringing this suit, the owner and holder of said note, as these defendants are informed and believe, and said James McNatt knew of said agreement by which said note was not to be traded until it was indorsed by said will of the directors of said company; that said James McNatt and said company traded said note to the plaintiff in violation [of said agreement?]; that said suit is now proceeding for the benefit of said James McNatt, as these defendants are informed and believe, and these defendants say they are not liable on said note for the reasons aforesaid.”

On February 28, 1916, defendants amended their plea, as follows: “On January 2d, 1914, in the City of Savannah, the-note sued upon was fully paid by the defendant James McNatt, by his giving note to plaintiff for the sum of $4,885.79, due six months after date, which said note embraced the principal and interest due on the note sued upon up to January 2d, 1914, and that on January 2d, 1914, said note was surrendered and delivered by plaintiff to said James McNatt; that these defendants are accommodation indorsers and sureties upon the note sued upon in this case; that on January 2d, 1914, plaintiff took in payment of the note sued upon in this case the note mentioned and described in the first paragraph of this amendment; that in said note collateral was pledged by said James McNatt to plaintiff, to wit: order on receivers of Vidalia Coffin & Casket Company to pay money collected for the account of James McNatt; that this was done without the knowledge and consent of these defendants; that the contract sued upon, was charged [changed?] and a motion [novation?] thereof thus made; and these defendants admit that they have been discharged from all liability on said note by reason of the foregoing fact.”

The ease proceeded to trial, and, after the evidence was all in, a verdict was directed for the plaintiff, for the full amount of principal, interest, and attorney’s fees sued for.

There is no merit in the contention of defendants that attorney’s fees should not have been awarded because of the fact that the Yidalia Coffin & Casket Company, maker and indorser of the note, was not sued, and because no notice was given it in reference to these fees. These defendants were accommodation indorsers, and therefore sureties upon the note. “The principal and surety on a note are jointly and severally liable.” Armstrong v. Ciiizens etc. Bank, 145 Ga. 864 (90 S. E. 46); Heard v. Tappan, 116 Ga. 933 (43 S. E. 375). “Upon a joint and several obligation to pay. attorney’s fees, one defendant may be held liable therefor, although his codefendant, or joint promisor, is relieved from liability through failure of the plaintiff to give the statutory notice.” Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275 (4), 279 (65 S. E. 35).

The following evidence of E. J. Giles was ruled out on objee: tions by plaintiff, to wit: “In these conversations that Judge Adams [counsel for plaintiff] has been asking me about, Mr. MeNatt, in the conversation with him this morning, said that the note sued upon belonged to him.” Defendants insist that this ruling was error, “because, counsel for plaintiff having gone into these conversations, these defendants were entitled to all of the conversation, and especially to what MeNatt said therein in reference to the ownership of the note sued upon.” Each ground of a motion for a new trial must be complete without reference to the brief of evidence. There is nothing in this ground of the motion to show whát “these conversations” were, and nothing to show that “the conversation with him this morning” contained any admission; and it is only “when an admission is given in evidence, it is the right of the other party to have the whole admission and all the conversation connected therewith.” Civil Code (1910), § 5783. Matters wholly disconnected from the part first offered are.not admissible, even though a part of such conversation. Brown v. State, 119 Ga. 572 (5), 575 (46 S. E. 833). Besides, the testimony of Giles quoted above is clearly hearsay.

Objection is made that the court refused to allow the witness to answer the following question: “When that note [referring to the note sued upon] was indorsed by the gentlemen whose names are on the back of it, what was the agreement, if any, as to who should indorse that paper before it was delivered or traded?” it being stated that “the defendants could prove by this witness that the note sued upon was indorsed by the present indorsers for the maker, with the understanding with the maker and among all of them, that the paper was not to be traded until Mr. McLemore and Mr. Tidwell had indorsed it; that these two gentlemen were solvent, are still solvent, and able to respond to any judgment on this paper.” There is no allegation that when this note was traded to the bank it had any notice whatever of such a condition. “ One who signs or indorses a note as surety can not in defense to an action thereon, either by the innocent payee or any other bona fide holder for value, set up that the principal maker, to whom he intrusted the note, delivered it in violation of a condition that a certain other person or persons should first sign or indorse it. Clarke v. Bryce, 64 Ga. 486; Bonner v. Nelson, 57 Ga. 433.” Hancock v. Empire Cotton Oil Co., 17 Ga. App. 188 (86 S. E. 441).

In their answer, the defendants who pleaded urged that they were discharged from liability because for a valuable consideration there was an extension of time to one of their cosureties. Under the facts of this case such a plea can not be sustained. It will be noticed that this alleged agreement was between the original creditor and one of the cosureties. It is not pretended that any arrangement of any sort was made with the principal debtor, and the evidence shows that no valuable consideration was paid, and no one of the sureties was released or compounded with.

The court did not err in ruling out testimony of R. L. Sharpe as set out in the bill of exceptions, as the same was clearly hearsay.

The court properly directed a verdict for plaintiff. “The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded.” Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (35 S. E. 777); Skinner v. Braswell, 126 Ga. 761 (2) (55 S. E. 914).

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


author: Bloodworth, J.'

text:
    8326.
    BUFORD v. SOUTHERN COTTON OIL CO.
    1. Under the act of 1910 as to the city court of Savannah (Ga. Laws, 1910, p. 203), which requires that in eases brought in that court the defendant “shall file his demurrer, plea, or answer in writing on or before the opening of the court at the return term of the suit,” and that “in case of default, the same shall be noted on the docket,” the court, in a case in which no plea or answer was filed in the required time, or for several terms thereafter, but in which no entry of default had been made on the docket, did not err in refusing to strike an answer, filed before the case was called for trial, on the ground that it was filed too late.
    2. The court erred in directing a verdict for the defendant.
    Decided July 23, 1917.
    Complaint; from city court of Savannah—Judge Davis Freeman. January 8, 1916.

      Oliver & Oliver, for plaintiff. George W: Owens, for defendant.
   Bloodworth, J.'

Buford brought suit against the Southern Cotton Oil Company, returnable to the July term, 1914, of the city court of Savannah. No plea was filed until July 31, 1916. On August 1, 1916, plaintiff moved to strike the answer, upon the ground that it was filed too late, and “upon the ground that the answer was filed without any order of the court, or consent given by the court thus to file the same, and that the filing of the answer tended to deprive the plaintiff of a vested right which had accrued under the law.” This motion was denied, “because said' case had not been marked ‘In default/ and the plea was filed before the case was called for trial.” When the evidence was all in the judge directed a verdict for the defendant, for $50.22, the amount shown to be due the defendant, by the account set out in the plea and by the admission of the plaintiff.

Did the court err in refusing to strike the answer of the defendant? The answer to this question must be found in the proper construction of “An act to alter and amend the several laws relating to the city court of Savannah, and for other purposes,” found in Georgia Laws of 1910, p. 203, which provides as follows: “Defendants in cases brought in the city court of Savannah shall file his demurrer, plea or answer in writing on or before the opening of the court at the return term of the suit, and the pleadings shall conform to the general law of the State. In case of default, the same shall be noted on the docket, and in such case the defendant may of right before the opening of the court, on the Monday following the beginning of the term, open the default by filing and pleading not dilatory. If the default be not so opened the plaintiff may proceed ex parte and establish his demand, upon the proof thereof, but the judge of said court may upon cause shown either before or after final judgment open a default at any time within thirty days from the opening of the term.” From this it will be seen that the provision is mandatory that the defendant shall file his defense “on or before the opening of the' court at the return term of the suit,” and that it is also mandatory that in cases of default the judge shall note the same on the docket. It appears that no plea was filed and that the judge did not enter default upon the docket. In the case of Thurmond v. Groves, 126 Ga. 779 (55 S. E. 915), the second headnote is as follows: “If there were any duty on the part of the judge to mark the case in default under this act, in the absence of anything appearing to the contrary, the presumption would.be that he did so.” By the express terms of the above-quoted act, it is the duty of the judge, in case of default, to note the same on the docket. As the judge is presumed to do his duty and there is no entry on the docket, there must have been some reason why it was not so marked. This idea is borne out by the fact that the .attorney for the plaintiff did not take judgment, although several terms had passed before the plea was filed. There is evidently something in the case not disclosed by the record. It may be that a demurrer was filed, or that something happened in this case similar to that which occurred in the case of Davis v. S. C. & Ga. R. Co., 107 Ga. 420 (33 S. E. 437). The attorney for the plaintiff complained that the plea was filed too late. If there was no reason for passing the case from term to term, why did not counsel for the plaintiff take judgment before the term at which the plea was filed ?

It is true that this court and our Supreme Court have held, where acts relating to city courts provided for the trial of cases at the first term, that the procedure was so changed as to make the superior court practice as to defaults utterly inapplicable. Dodson Printers’ Supply Co. v. Harris, 114 Ga. 966 (41 S. E. 54); Pitts v. Wheeler, 6 Ga. App. 720 (65 S. E. 689); Hunter v. Hinman, 7 Ga. App. 387 (66 S. E. 1039). But in such cases there was no reference in the acts to defaults. In the instant ease it is different, and we can analogize the provisions of the act to the sec-, tions of the code in reference to judgments and defaults in the superior court. Under our law, persons who are sued in the superior court must make their defense at the first term. Civil Code, §§ 5628, 5635, and 5653; Cowart v. Stanton, 104 Ga. 520 (30 S. E. 743). Sections 5653, 5655, and 5656 of the Civil Code of 1910' provide for the entry and for the opening of defaults. Section 5655 provides that in the event the default is not opened within thirty days from the entry thereof, “the plaintiff shall be entitled at the trial term to take a verdict or judgment as the case may be.” Section 5656 provides that the judge in his discretion may allow defaults opened “for providential cause preventing the filing of plea, or for excusable neglect, or where the judge from all the facts shall determine that a proper case has been made for the default to be opened on terms to be fixed by the court.” It is now well settled that a default can not be opened after the trial term has passed. Brawner v. Maddox, 1 Ga. App. 332 (58 S. E. 278); Longalife Paint Co. v. Williams, ante, 524 (93 S. E. 154). The act governing cases of default in the city court of Savannah, quoted supra, provides that “In case of default, the same shall be noted on the docket, and in such case the defendant may of right before the opening.of the court, on the Monday following the beginning of the term, open the default by filing and pleading not dilatory. If the default be not so opened the plaintiff may proceed ex parte and establish his demand, upon the .proof thereof, but the judge of said court may upon cause shown either before or after final judgment open a default at any time within thirty days from the. opening of the term.”

It will thus be seen that where there is an entry of default in a case in the superior court, the default can not be opened after the trial term; and it appears from the act quoted above that a default in the city court of Savannah can not be opened at any time after thirty days from the opening of' the first term. But we are dealing with a case in which there is no entry of default on the docket; and we are forced to the conclusion that under the special act referred to, there must be an entry of default on the docket, or an adjudication of the fact of default, before the defendant will be denied the privilege of filing his defense. In the case of Davis v. S. C. & Ga. R. Co., supra, there was no pleading at the first term and no default entered, and in the decision (p. 422) Justice Lewis said: “We think in this case the judge erred in ruling that the case was in default at all. An adjudication of default is evidenced by an entry on the docket, even if the defendant had ever become liable to such judgment against him in this case, there was a failure to so enter it. The statute gives him thirty days after-'the entry of default in which to plead and have the same opened upon the payment of costs. To allow the defendant to file his demurrer before such entry has been made, and therefore before the case had actually been adjudged in default, was certainly no abuse of discretion on the part of the judge, and was not a violation either of the spirit or letter of the statute.” The following rulings are in point: “When upon the call of the appearance docket no entry of default is made, the court may in its discretion, at a subsequent term, permit a plea to be filed at any time before such entry has been made.” Chambless v. Livingston, 123 Ga. 257 (51 S. E. 314). “Where a plea has been filed after the expiration of the time allowed by law, but the case has never been marked ‘In default/ it is not error, on the call of the case for hearing, to refuse to strike the plea and an amendment thereto because not filed in time; and the decisions upon this question in the cases of Davis v. South Carolina R. Co., 107 Ga. 420 (33 S. E. 437), Gordon v. Hudson, 120 Ga. 698 (48 S. E. 131), Chambless v. Livingston, 123 Ga. 257 (51 S. E. 314), and Gillis v. Atlantic Coast Line R. Co., 127 Ga. 678 (56 S. E. 1003), upon a review thereof are affirmed.” See also McKenzie v. Consolidated Lumber Co., 142 Ga. 375 (82 S. E. 1062); Hall v. Tiedeman, 141 Ga. 602 (81 S. E. 868); Clifton v. Fiveash, 122 Ga. 383 (50 S. E. 134); Price v. Hamilton, 146 Ga. 705 (92 S. E. 62).

There is an apparent, if not a real, conflict between what is here decided and what is decided in the case of Riverdale Pecan Co. v. Cutter, 16 Ga. App. 631 (85 S. E. 929). But we are following the rulings of our Supreme Court as laid down in the above-stated cases, and by these we are bound. In the case just referred to, Chief Judge Eussell cited the case of Dodson Printers’ Supply Co. v. Harris, 114 Ga. 966 (41 S. E. 54), and in the case cited Chief Justice Simmons called attention to the fact that in the superior court the code requires that the judge shall call the appearance docket at the.first term and mark against each case “Answer” or “Default;” and then added: “The city court of Atlanta has now no appearance term. The judge is not obliged to call the appearance docket.” The other case cited by Chief Judge Eussell is that of Thurmond v. Groves, supra, which arose in the city court of Washington, and the act creating that court makes no provision for the calling of the appearance docket or for marking cases “in default.” In the city court of Savannah, as above shown, the judge was required in case of default to enter the default on the docket. It will thus be seen that the cases cited in the case of Biverdale Pecan Co. v. Cutter, supra, are apparently not authority for the broad principles laid down in that case. The facts in the other cases cited by counsel for the plaintiff in error clearly distinguish those cases from the instant one. In the case of Bass v. Doughty, 5 Ga. App. 458, 460 (63 S. E. 516), Judge Powell said: “Punctuality is a virtue of high order, but truth and justice áre even more exalted; hence the demand for punctuality in pleading should not be so strict as to prevent inquiry into truth and to deny justice where the delinquency is reasonably excusable. Therefore, while the law makes requirements of punctuality in pleading, it also usually makes provision for relieving against the penalties imposed for a lack of this virtue, when the interests of truth and justice require it. This may be said to be the general policy of the law. Our statutes for opening defaults well indicate this policy. Therefore if the language used by the legislature in a special act is ambiguous or doubtful in meaning, the ambiguity and doubt will be resolved against harshness and injustice and in favor of letting the truth be known.”

Under the above rulings we are constrained to hold that the judge properly refused to strike the plea.

The plaintiff’s suit was based upon a contract under which he was to purchase for the defendant cottonseed on commission. In his petition he asked for commissions on a number of transactions. The evidence in reference to at least a part of these was conflicting as to material facts, and we can not say that tlie evidence introduced, with all reasonable deductions and inferences therefrom, demanded a verdict for the defendant; and for this reason the judgment is

Reversed.

Broyles, P. J., and Jenkins, J., concur.