Atlanta Consol. St. Ry. Co. v. Bagwell
| Decision Date | 18 April 1899 |
| Citation | 33 S.E. 191,107 Ga. 157 |
| Parties | ATLANTA CONSOL. ST. RY. CO. v. BAGWELL. BAGWELL v. ATLANTA CONSOL. ST. RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. That the contentions of one party were not as specifically set forth in the charge of the court as were those of the other was not cause for a new trial, when the charge as a whole fully, fairly, and correctly covered the law applicable to every issue in the case.
2. There was no error in refusing to give a request in charge which implied that counsel for the adverse party had made an improper appeal to the jury, when, as shown by the certificate of the trial judge, no such appeal was made.
3. Refusal to give requests in charge is not error, when, so far as legal, they are fully covered by the general charge.
4. Where counsel for the defendant objected to certain language used by plaintiff's counsel in his argument to the jury upon the ground that it was an appeal "to make a verdict based on matters not in the plaintiff's declaration and suit," and thereupon the presiding judge stated to the jury that "the position of defendant's counsel was the law, and the jury should take it as such," and gave further appropriate instructions upon the subject, after verdict a new trial should not be granted the defendant upon the ground that "the court should have given direct and unqualified disapproval of [such appeal] to the jury, and that the response of the court to the point made by defendant's counsel on that line of argument was not adequate in view of the nature of the appeal made." The defendant's counsel should have requested such instructions as, in his opinion, would have been sufficient to remove any improper impressions made upon the minds of the jurors by the unauthorized appeal of plaintiff's counsel or moved that the case be withdrawn from the jury, and a mistrial declared.
5. The cries or exclamations of bystanders upon seeing an accident about to occur may be proven to explain the state of mind and conduct of a person hearing them, and who is injured in the accident.
6. This court cannot undertake to determine whether or not error was committed by the trial judge in refusing to permit counsel to ask a witness and have him answer a given question, when it does not appear what the answer thereto would have been had it been allowed. (a) A witness who is not an expert as to the subject upon which he is questioned is incompetent to give an opinion thereon, without stating the facts on which his opinion is based.
7. Though in defense to the plaintiff's contention that the person for whose benefit the suit was proceeding was injured by reason of the negligent running of the defendant's cars, the latter introduced evidence tending to show that the injury could have been caused or aggravated by excessive sexual intercourse, there was, under all the facts and circumstances, no error in rejecting other evidence offered to show that a given person had caressed, hugged, and kissed such injured party.
8. Where the defendant offered to prove by a witness that he had taken liberties with the woman for whose benefit the suit was proceeding, and had become intimate or familiar with her, and by another witness the circumstances under which he had seen her and a certain man in the woods, and the intimacy existing between them, this court cannot determine whether or not error was committed in the rejection of such evidence by the trial judge, when it does not appear what the acts or circumstances constituting such familiarities or intimacies were.
9. There was no error in rejecting evidence offered to show the state of feeling existing between certain witnesses.
10. There is no merit in a ground of a motion for a new trial which complains that the court erred in allowing a given amendment to the declaration "after the trial had commenced, and when there was no opportunity for medical examination of the plaintiff" as to the additional injury alleged in the amendment; especially where it does not appear that the defendant objected to the amendment for any reason.
11. The evidence for the plaintiff was amply sufficient to authorize the verdict, and in the light of such evidence the verdict was not excessive.
Error from city court of Atlanta; J. D. Berry, Judge.
Action by J. W. Bagwell, next friend of Della Bagwell, against the Atlanta Consolidated Street-Railway Company. Verdict for plaintiff. On refusal of new trial, defendant brings error and plaintiff assigns cross error. Judgment affirmed, and cross bill dismissed.
Goodwin, Westmoreland & Hallman, for plaintiff in error.
Dorsey, Brewster & Howell and Hugh M. Dorsey, for defendant in error.
Bagwell, as next friend of his minor daughter, Della, brought suit against the Atlanta Consolidated Street-Railway Company for damages, for personal injuries alleged to have been sustained by her while a passenger on one of the defendant's cars. The declaration alleged that the car upon which she was riding, by reason of defendant's negligence, collided with another of its cars, causing her to jump from the car which she was on, and to be violently thrown to the ground, and seriously injured, and that she was entirely free from fault. The defendant answered, denying all of the material allegations of the petition. The jury returned a verdict in favor of the plaintiff for $2,500, and upon the overruling of the defendant's motion for a new trial it excepted.
1. In the sixth ground of the motion for a new trial complaint is made that the court erred in its charge in stating specifically the contentions of the plaintiff, as set out in the declaration, and in regard to the contentions of the defendant merely charged that "you will also have the answer of the defendant company, and you can look to that for its contentions." While the contentions of both parties should be stated by the court to the jury with equal fullness and fairness, yet in this case we do not think the plaintiff in error has any just cause of complaint in this respect, as the court in its charge fully, fairly, and correctly stated the law applicable to every issue in the case. Moreover, the answer of the defendant was simply a denial of the allegations in the declaration.
2. The seventh ground complains that the court erred in refusing to charge the following written request: All of this request was given in charge, except the last sentence. The ground sets forth that: "Defendant contends that the said request should have been charged in its entirety as made, and that said last sentence was appropriate, pertinent, and demanded by the appeal which had just been made by plaintiff's counsel in the concluding argument to the jury, as set out in the tenth ground of this motion, and in which said plaintiff's counsel repeatedly invoked the jury to give a larger verdict because of the evidence of the witness Bradbury, reflecting on plaintiff's character." In a note to this ground, the court states that counsel for plaintiff below did not make the appeal to the jury complained of, but "in his argument to the jury stated that the jury could not, under the law, give plaintiff anything for what he characterized as the attack upon her character; that not being an element of damages recoverable by her at law." Under these circumstances, the last sentence of the request was not applicable to the facts of the case, and there was no error in refusing to charge it.
3. Complaint is made in the eighth and ninth grounds because...
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