Alabama Great Southern Railway Co. v. Hamby

Stephens, P. J. Mrs. Florence Hamby and her husband, J. F. Hamby, brought suit against Alabama Great Southern Railway Company. Mrs. Hamby sued for damages for personal injuries, including pain and suffering, alleged to have been caused by a large tap or nut which was hurled with great force from a passing locomotive engine belonging to the defendant, and which hit her in the leg after she had crossed the track of the defendant at a public crossing and was approximately twenty-five feet from the engine as it passed. Mr. Hamby sued to recover damages for loss of the services of his wife. It was alleged in both petitions that the defendant was negligent in the operation of its train, in that parts of the locomotive or tender were defective “to the extent that the nut which struck plaintiff wras permitted to become or be loose and be hurled with great force and violence so as to strike plaintiff, which defect was known to the defendant company, its officers, agents, and employees, or by the exercise of [216] reasonable ordinary care should have been so known;” that the defendant was negligent in permitting the engine and tender to be operated, and in operating them, without having inspected them, at or near a public place where the company knew that people were likely to be; that if the engine and tender had been inspected, ordinary care and precaution should have been exercised in the making of such inspection. The defendant generally denied the allegations in the petitions. The cases were tried together. Mrs. Hamby testified in substance, that about August 22, 1935, between two and three o’clock in the daytime, she crossed the tracks of the defendant at a crossing near the railroad station in Trenton; that after she had crossed the tracks, and as a train of the defendant was passing and was about twenty-live feet from the track, something hit her on the back of one of her legs with great force, and she dropped and fell; that at the time she did not know what had hit her, but she turned and saw a tap or nut rolling off; that she picked it up; that it was hot, was not clean, but was greasy; that she took it home; that it was in her handbag; that the distance from the point where she was struck to the point where she picked up the tap or nut was about two or three feet; that at the time when she was struck there was no moving object other than the train anywhere in the vicinity; and that no other kind of machinery was anywhere in sight. There was evidence tending to show the extent of the injuries, and to establish the extent of the claim of the husband for the loss of his wife’s services. The defendant, besides introducing evidence which tended to minimize the extent of the injuries, introduced evidence which tended only to show that at the time alleged and testified to, no train of the defendant was in or near the vicinity where Mrs. Hamby contended she was when injured. The court charged the jury, that "where something unusual happens to a defendant’s property over which he has control, and by such extraordinary occurrence a plaintiff [is] injured, an inference may arise that the injury was due to the defendant’s negligence;” and that “the inference may in some cases arise, from an unexplained occurrence which has worked an injury to another, that the defendant, who had in charge the instrumentality which was the direct cause of the injury, was guilty of negligence, [and] may or may not be drawn by the jury; but, [217] like the fact of negligence or no negligence, the inference which the jury may be authorized to draw is peculiarly an inference of fact.” This charge was error in that it assumed, and amounted to an expression of opinion by the court, that Mrs. Hamby was injured by the defendant, or by some instrumentality of the defendant over which the defendant had control; whereas there was an issue of fact whether Mrs. Hamby was injured as a result of some act of the defendant. Since no issue was presented by the evidence respecting .the alleged negligence of the defendant, but the only issues presented-being whether or not Mrs. Hamby was injured by the operation of a locomotive or cars of the defendant, that her injuries were as severe as claimed, and also as to the amount of the husband’s loss of services of the wife, resulting from the alleged injury to her, and since it did not appear that the defendant had within its power any witnesses, other than the witnesses introduced, who could have explained or disproved the claim that Mrs. Hamby was injured by the operation of the defendant’s locomotive or cars, or the claims as to the severity and monetary value of the injuries and loss of the wife’s services to her husband, it was error prejudicial to the defendant to charge the jury as follows: “Where a party has in its power witnesses to explain an occurrence, or to disprove a fact, and fails to produce such witnesses, the presumption arises that the evidence of such witnesses would be hurtful to the party failing to produce such witnesses.” Schnell v. Toomer, 56 Ga. 168; Central of Georgia Railway Co. v. Bernstein, 113 Ga. 175 (5) (38 S. E. 394); Shields v. Georgia Railway & Electric Co., 1 Ga. App. 172 (2) (57 S. E. 980). Code, § 38-119. It is not necessary, to pass on the ground of the motion for new trial which excepts to the failure of the judge to declare a mistrial on motion of the defendant, on the ground that counsel for the plaintiff, in his argument to the jury, argued and invoked the rule in § 38-119, supra. The court erred in overruling the motions for new trial. Judgments reversed. Sutton and Felton, JJ., concur.