Georgia Railroad v. Bryans , 77 Ga. 429 ( 1886 )

Hall, Justice.

Two verdicts having been rendered in favor of the plaintiff, the court refused to set aside the last and grant a new trial upon any of the grounds set out in the motion therefor. This was an action by an employé of the defendant, the Georgia Railroad and Banking Company, to recover damages for an injury sustained by him in coupling its- cars. In the performance of this duty, a portion of one of his thumbs was so mashed and crushed thatithad to be amputated, as he alleges, and as he seems to have proved, at least to the satisfaction of two juries, without any fauit or negligence on his part, but by the negligent and careless handling of the company’s train by his co-employés, who, in conjunction with him, were managing and operating it. There is no complaint that the last finding in his favor was excessive, but it is insisted that he was not entitled to recover at all, under the facts of the case as proved on the trial, and for that reason, it is said the verdict is contrary to law; and further, that it is contrary to evidence; that it was contrary to a specified charge of the court; and lastly, because the court erred in admitting, over.defendant’s objection, the following questions addressed to plaintiff by his counsel when he was testifying in the cause : “ State

what prevented your making a safe coupling ?” Answer, “It” (the train) “was coming back too fast.” Counsel: lcIn your judgment, that is what occasioned it?” Answer, “It was coming back too fast, and that-was the whole cause of it.” The error alleged is this, that the answers were in effect the expression of witness’s opinion, and not statements of fact; or rather, his conclusions from facts, which conclusions it was the province of the jury alone to draw. The plaintiff’s evidence developed, as causes of the inj ury the following, viz: That the bumpers on the cars to be coupled were of different heights; that the coupling links were too short and straight; that the link to be used was on a car belonging to another company, but lately arrived at the station, and was left in a most dangerous situation to be used by the coupler; and lastly, the improper speed at which the engineer brought up the train to be coupled to the stationary car in question. It seems that the train did not acquire this rate of speed until it was very near the car to be coupled, and that it was not and could not have been discovered in time to enable the plaintiff to give a signal to check or moderate it.

1. There was certainly evidence that the plaintiff did not bring about this injury by his fault or negligence; and this being proved, the onus was shifted on the company to show that its agents were in the exercise of all ordinary and reasonable care and diligence, otherwise the statutory presumption of negligence would be against them. Code, §§3036, 3033 and citations under each. That the question as to the negligent conduct of each of the parties was fairly and fully submitted to the jury is conceded, and we are of opinion that there was evidence sufficient to sustain them in finding that the plaintiff was not and that defendant’s employés were negligent; at least the judge juro has vice, who presided at the trial, was of that opinion, and we cannot say that he abused his discretion in refusing to disturb the verdict, especially as it was the second finding in favor of the plaintiff.

2. Nor are we clearly satisfied that the evidence objected to was inadmissible for the reasons assigned, or either of them. It is often difficult to draw the line which separates a “ statement ” of a fact, either from “ the conclusion of the witness drawn from such fact,” or his opinion as to what caused the damage of which complaint is made. This, in our opinion, is distinguishable from the cases relied on by the learned counsel for defendant, the first being Central Railroad vs. Kelly, 58 Ga. 108, in which testimony ■of the plaintiff’s, opinion as to the entire amount of damage suffered by him was rejected; and the second, the Central Railroad vs. DeBray, 71 Ga. 406, 420, where it was said, there is no error in rejecting the testimony of a witness, “ that any person with ordinary care could have gotten off over the skids where plaintiff did without being hurt; this being a conclusion which the jury might find, but was not such as the witness could draw for them.”

In Wylly vs. Gazan, 69 Ga. 506, 509, 510, witnesses were offered to prove that the words “ more or less,” used in an advertisement of sale by an executor, would include a deficiency of eight or nine feet in a city lot, and would justify a refusal to comply with a bid made at a sale under such an advertisement, and we held the testimony inadmissible, 1st, because it was one of the conclusions which it was the duty of the jury, under the instructions of the court, to draw from the facts and circumstances attending the transactions; 2d, because it was not a subject for expert testimony, inasmuch as there were no questions of skill, science or trade involved, on which the opinions of such witnesses-, could be taken in accordance with §3868 of the code; and lastly, because the questions to be decided were not such as were proper to be illustrated by the opinions and belief of witnesses, although they gave the facts on which these opinions were founded. Code, §3867.

In this judgment we endeavored to distinguish such opinions and belief and such conclusions from evidence of the existence of a fact, as to which the opinions and conclusions of witnesses were generally inadmissible. Whether we .made the distinction here pointed out plain or not, as we hoped we had done in that case, we are satisfied that the end .was attained in the judgment pronounced by Brown, judge, in The Central Railroad vs. Senn, 73 Ca. 705, 709, 710, 711; and here we leave the question, refer, ring only to the numerous cases and text-books cited on the copious, well arranged and exhaustive brief of J. N. Glenn, Esquire, of counsel for the plaintiff in the court below, the defendant m error here.

Judgment affirmed.