Western & A. R. Co v. York
Citation | 128 Ga. 687,58 S.E. 183 |
Parties | WESTERN & A. R. CO. v. YORK. |
Decision Date | 12 July 1907 |
Court | Supreme Court of Georgia |
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.
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.
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.]
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: 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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