Parker v. Georgia Pac. Ry. Co.

• Decision Date: 28 October 1889
• Citation: 10 S.E. 233,83 Ga. 539
• Parties: PARKER v. GEORGIA PAC. RY. CO.
• Court: Georgia Supreme Court

10 S.E. 233

83 Ga. 539

PARKER v. GEORGIA PAC. RY. CO.

Supreme Court of Georgia

October 28, 1889

Syllabus by the Court.

1. Only in an extreme case, if at all, will a reviewing court order a new trial because leading questions were propounded to a witness.

2. The evidence being sufficient that the rule-book offered contained the rules of the company of force when the employe was injured, the book was admissible, without first proving that the employe had knowledge of the rules it contained. His knowledge was matter for either prior or subsequent verification.

3, 4. Whether an employe giving a signal to a co-employe had a right to have it observed, or whether it was possible to transact business without acting upon the assumption that it would be observed, is for decision by the jury, not by a witness.

5. Where the instructions sought are plainly implied in those given to the jury, failure to charge in express terms as requested is not error.

6. Failure of a railroad employe to extricate himself from a perilous situation brought on by the negligence of a co-employe, when he could do so by the use of ordinary care will bar his right to recover.

7. To refer to the jury the question of the plaintiff's duty under certain circumstances detailed in the evidence is only to refer to them the question of his diligence or negligence and is not error.

8. When the judge, at the request of the jury, on their return into court, pending their deliberations, has recharged them touching the law applicable to the plaintiff's negligence, he need not add anything respecting the defendant's negligence; no request as to that being made by the jury. (a) The court has a right to volunteer an additional charge, or to recharge on the general rule as to finding according to a preponderance of the evidence. ( b) After giving this rule, for the court to add that by observing it the jury would, in his opinion, have no difficulty in arriving at a verdict, was not to intimate what the evidence was, or its effect, or which party ought to prevail. (c) To instruct the jury that ordinary care must be used when it will avail is plainly to imply that it need not be used when it will not avail.

9. The court did not unduly press the jury to arrive at a verdict though, perhaps, the language addressed to them went to the limit of propriety.

Error from city court of Atlanta; VAN EPPS, Judge.

Hoke & Burton Smith, for plaintiff in error.

Jackson & Jackson, for defendant in error.

BLECKLEY C.J.

1. Concede that the questions to Perkerson were leading; their allowance would not be cause for a new trial. It would be a very extreme case indeed in which the mere form of the questions to a witness would justify a reviewing court in setting aside the verdict and judgment.

2. There was sufficient evidence that the rule-book admitted in evidence contained the rules of force when the plaintiff was injured, and whether he had knowledge of them or not was a question not going to the admissibility of the rules, but to their binding effect upon his conduct. That the rules existed, and what they were, constituted one step in the defendant's evidence, and that could be taken without first showing that the plaintiff had knowledge of them.

3. The question to Turner, "When the brakeman, in the discharge of his duty, gives a signal for the engineer to stop, and he the right to rely upon the engineer stopping?" is not quite intelligible as it stands in the transcript of the record. Doubtless it means, has or had he the right? etc. Thus construed, the right would be for decision by the jury, not by the witness. That the question was objected to, and ruled inadmissible, without any ground of objection being stated, is of no consequence. Where the court sees for itself that the question is not legal, no ground need be mentioned for information of the court, and, if counsel propounding the question want the information, they should call for it.

4. Whether it be possible to transact business unless a brakeman...