Newsom v. The Ga. R.R.

• Decision Date: 28 February 1879
• Citation: 62 Ga. 339
• Parties: Newsom. v. The Georgia Railroad.
• Court: Georgia Supreme Court

62 Ga. 339

Newsom. v. The Georgia Railroad.

Supreme Court of the State of Georgia

(February Term, 1879.)

Page 339*

Railroads. Negligence. Damages. Evidence. Practice in the Supreme Court. Before Judge Bartlett. Greene Superior Court. September Term, 1878.

To the report contained in the decision, it is only necessary to add, that two of the grounds of the motion for new trial were as follows:

1. Because the court erred in refusing to allow Joseph Davison, a witness for plaintiff, to give in evidence to the jury the declarations of the conductor of the train, which declarations were made six minutes after plaintiff was hurt.

2. Because the court erred in allowing evidence as to the average length of trains on defendant's road at that season of the year.

M. W. Lewis & Son; E. C. Kinnebrew, for plaintiff in error, cited (as to declarations of conductor). Code, sees. 2206, 3787, 3773; 28 Ga., 93; 18 Ib., 635; 56 Ib., 498, 274; 1 Gr. on Ev., sec. 110; 55 Ga., 696. On evidence of average length, Code, sec, 3756; 58 Ga. 500.

J. A. Billup's; J. C. Reed; W. W. Lumpkin, for defendant, cited Code, sec, 2206.

WARNER, Chief Justice.

This was an action brought by the plaintiff against the defendant to recover damages for the alleged malicious blowing the whistle of its engine on its railroad when the plaintiffwas traveling along the public road with his horse *and buggy, thereby causing his horse to run away and injuring him and his property. On the trial of the case the jury, under the charge of the court, found a verdict in favor of the defendant. The plaintiff made a motion for a new trial on the grounds therein stated, which was overruled, and the plaintiff excepted.

1. There was no error in rejecting the evidence of Davidson as to the declarations of the conductor of defendant's train that we can correct, inasmuch as it does not appear in the record what those declarations were which the plaintiff offered to prove.

2. It was a material question on the trial of the case as towhat was the length of the defendant\'s train of cars on the day of the injury complained of—the defendant insisting that its whistle was blown so as to enable its hindmost car on its train to stop opposite the platform at the Bairdstown crossing for passengers to get off. The evidence was conflicting as to the number of cars on the defendant\'s train that day—the plaintiff insisting that as the evidence showed that he and defendant\'s engineer having had a previous difficulty, that the latter...