Atlantic Coast Line Railroad v. O'Neill

Cobb, P. J. (After stating the facts.) 1. The amendment to' the petition sufficiently met the objections raised in the special demurrer, and therefore it only becomes necessary to determine whether, as amended, the petition set forth a cause of action as. against the general demurrer. According to the averments of the petition the plaintiff was on the car of the defendant in the discharge of a duty which he owed to his employer in connection, with a transaction with the railroad company, where he represented his employer. In addition to this it is distinctly averred that he was invited by the yardmaster, who was in control of the yard and the cars, to take the position he did upon the car where the yardmaster was himself standing. Under such circumstances the railroad company certainty owed to the plaintiff the duty of exercising ordinary care and diligence for his safety, and the plaintiff had a right to assume that this duty would be discharged. Even if under ordinary circumstances the plaintiff should not have taken his position upon one of the cars of the defendant in its yard, and so doing would'have been at his peril, the invitation of the yardmaster, the agent of the railroad company in charge of its business in connection with the transaction in which both the plaintiff’s employer and the railroad company were interested, and when the plaintiff was representing his employer on the occasion in question, authorized him to go upon the car when there was nothing in the circumstances indicating peril in such course. The conduct of the switch-engineer was, according to the averments of the petition, certainly negligent. As against the general demurrer there can be but little question that the petition set forth a cause of action. 2. Complaint is made of the following charge of the court:/ “'The existence of a fact testified to by'one positive witness is to be believed rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired. This rule does not apply when, two parties having equal facilities for seeing or hearing a thing, one swears that it occurred, and the other that it did not.” Error is assigned upon this charge for several reasons, among them being that there was no evidence to authorize it, and [689] therefore it was calculated to mislead the jury, and that the court did not qualify it by further instructions that the rule did not apply unless other things were equal and the witnesses were of equal, credibility. The charge was certainly subject to the criticism that it lacked the qualification just referred to. It has been repeatedly held that it was error to charge, without qualification, that positive evidence is stronger than negative, or to use, in a charge, language to that effect. Warrick v. State, 125 Ga. 133 (8). In the case just cited Mr. Justice Lumpldn was dealing with an assignment of error identical with that now under consideration, and closed his discussion of the subject with the following apt and pointed remark: “The rule does not mean that the witness must be credited, regardless of anything else, if he swears positively. If so, hard swearing would necessarily import truth.” We think the objection that there was no 'evidence upon which to base the charge was also well founded. The question as to whether the plaintiff was invited to go upon the car by the yardmaster was one which became important and vital. The plaintiff and another witness testified positively that the yardmaster beckoned to plaintiff to come upon the car. The yardmaster denied that he invited plaintiff upon the car, or did any act which could be properly construed into such- an invitation. Such a state of affairs does not develop negdtive evidence of any character. All of the witnesses are positive. Some testify positively that a transaction of a given character did take place; the others testify that the transaction in question did not take place. See, in this connection, Humphries v. State, 100 Ga. 262 (3). But it may be said that the judge added to his instructions that the rule that he had just laid down did not apply where both witnesses swore positively. The vice in the charge is that it did not have the proper qualification as to the credibility of the witnesses. But even if it had been qualified in this way, the charge would have been confusing and misleading to the jury; calculated to leave the impression upon their minds that that which was positive evidence was merely negative in its character. We think the error committed in these instructions is of such prejudicial character as to require a reversal of the judgment. 3. There is no merit in the assignments of error upon those extracts from the charge which merely contain the substance of the [690] different sections of the code declaring what are general, direct, and consequential damages. There does not seem to be any error, as against the defendant, in the instructions complained of which declared that it is the duty of a party imperiled by another’s negligence, where two ways of conduct are open, one safe and the other manifestly dangerous, to adopt that course which is safe. We reverse the judgment solely upon the instruction first dealt with; and, as a new trial is to be had, we do not express an}*- opinion on the evidence. Judgment reversed. All the Justices concur, except Fish, G. J., absent.