Western & A. R. Co v. York

Citation128 Ga. 687,58 S.E. 183
PartiesWESTERN & A. R. CO. v. YORK.
Decision Date12 July 1907
CourtSupreme Court of Georgia
1. Pleading—Petition—Sufficiency.

The petition as amended set forth a cause of action as against a general demurrer and was not subject to any of the grounds set up in the special demurrers.

2. Writ of Error—Review—Harmless Error—Argument of Counsel.

Remarks of counsel while addressing the jury, which do not undertake to introduce any material fact not disclosed by the evidence, but which are merely oratorical in character, do not constitute sufficient ground for declaring a mistrial.

3. Trial — Instructions—Applicability to Issues.

Under the facts of this case it was not erroneous for the judge to charge: "The duty resting by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the danger is impending, or the circumstances are such that an ordinarily prudent man would have reason to apprehend its existence."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Negligence, § 92.]

4 Trial—Questions for Jury—Writ of Error— Review — Verdict on Conflicting Evidence.

Diligence of the person injured and negligence of the defendant were questions peculiarly for the jury. The evidence upon those questions and upon all other issues made was of such character as that we cannot say that the verdict in favor of the plaintiff was entirely unsupported. The discretion of the trial judge, therefore, in refusing to grant a new trial, will not be interfered with.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3871-3874.]

(Syllabus by the Court.)

Error from Superior Court, Cobb County; Geo. F. Gober, Judge.

Action by L. E. York against the Western & Atlantic Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

John L. Tye, Clay & Blair, and Tye & Bryan, for plaintiff in error.

J. Z. Foster, for defendant in error.

ATKINSON, J. 1. The questions raised by demurrer are of such character as that wedo not deem it necessary to make further reference to them than is expressed in the first headnote.

2. During the progress of his argument before the jury, counsel for the plaintiff in the court below used the following language: "Man is the noblest creation of God. God made no greater creation than man. He is the grandest product of divine handicraft; and He hedged about him the law: 'Thou shalt not kill.' God told Cain that the blood of his brother Abel cried to him from the ground. The most eloquent sermon I ever heard in my life was from the text: 'The statutes of the Lord are right.' 'Thou shalt not kill' is the statute of the Lord God Almighty. It was made for the protection of the lord of creation—for man; and it applies to a railroad corporation just as much as it, does to an individual. If a man Is dead by the reckless negligence of the servants and agents of the railroad corporation, the full consequences to him are the same. He is just as dead as if he had died by the uplifted and directed and murderous hand of his brother man. The shedding of innocent blood is just the same—just the same. Our land is defiled when innocent blood is shed therein, whether it be by the hand of a railroad corporation, or whether it be by the murderer's hand, or some one contending in a death grapple with his brother man; and the curse of God, which is charged against that, is upon it just the same. Gentlemen of the jury, when George W. York died on that public crossing in the city of Acworth, last October was a year ago, his innocent blood stained the right of way of this defendant." Whereupon counsel for the defendant moved the court to declare a mistrial upon the ground that the remarks by counsel for the plaintiff were improper. The court refused to declare a mistrial. Exception is taken to such ruling, and the same is made a ground of the motion for new trial. We do not think the remarks of counsel were of such character as to require the court to declare a mistrial. A mere flight of oratory of counsel when addressing the jury is not ground for a mistrial. Counsel may bring to his use in the discussion of the case well-established historical facts, and may allude to such principles of divine law relating to transactions of men as may be appropriate to the case. It is not impassioned oratory which the law condemns and discredits in the advocate, but it is the introduction of facts not disclosed by the evidence, which requires the...

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11 cases
  • Hicks v. State
    • United States
    • Georgia Supreme Court
    • February 13, 1987
    ...law relating to transactions of men as may be appropriate to the case.' " Conner v. State, supra (quoting Western & Atlantic R. Co. v. York, 128 Ga. 687, 689, 58 S.E. 183 (1907)) Finally, it is not improper to argue that the defendant himself--and not the police, the prosecutor, or the jury......
  • Carruthers v. State
    • United States
    • Georgia Supreme Court
    • March 6, 2000
    ...Use of Religious Arguments in the Sentencing Phase of Capital Cases, 50 VAND. L.REV. 1335 (1997). 8. See Western & Atlantic R. Co. v. York, 128 Ga. 687, 688-689(2), 58 S.E. 183 (1907) ("Counsel may bring to his use in the discussion of the case well-established historical facts and may allu......
  • Cole v. State
    • United States
    • Georgia Court of Appeals
    • June 19, 2003
    ...745 (1995) (quoting Bible, although improper, harmless). 6. Carruthers, supra at 309, 528 S.E.2d 217. See Western & Atlantic R. Co. v. York, 128 Ga. 687, 689(2), 58 S.E. 183 (1907) ("Counsel may bring to his use in the discussion of the case well-established historical facts and may allude ......
  • Rogers v. Black, 44990
    • United States
    • Georgia Court of Appeals
    • February 12, 1970
    ...Ga.App. 421, 425, 69 S.E.2d 821; Royal Crown Bottling Co. of Macon v. Bell, 100 Ga.App. 438, 443, 111 S.E.2d 734; Western & A. R. Co. v. York, 128 Ga. 687, 688, 58 S.E. 183; Adkins v. Flagg, 147 Ga. 136, 137, 93 S.E. 92. Nor can we hold that the statement made by the court in overruling the......
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