Atlanta & W.P.R. Co. v. Holcombe

• Decision Date: 19 October 1891
• Citation: 13 S.E. 751,88 Ga. 9
• Parties: Atlanta & W. P. R. Co. v. Holcombe.
• Court: Georgia Supreme Court

13 S.E. 751

88 Ga. 9

Atlanta & W. P. R. Co. v. Holcombe.

Supreme Court of Georgia

October 19, 1891

Syllabus by the Court.

1. Where the employe whose business it was to place a stool used for the purpose of assisting lady passengers to enter the train was not produced or accounted for, there was no error in rejecting evidence that it was the custom and habit of the company to have the stool in its proper place up to the time of the starting of the train, there being positive evidence in behalf of the plaintiff that it was out of place when he was injured, and only negative evidence to the contrary in behalf of the defendant.

2. It not appearing that the witness who would ordinarily know the fact in question, and who was one of the employes of the company at the time the cause of action arose, was inaccessible, or that the defendant was ready to produce him there was no error in calling attention to his absence or non-production in charging the jury as a fact to be considered by them in connection with the case.

3. There was no error in denying a new trial.

Error from superior court, Fulton county; Marshall J. Clarke Judge.

Action by S. L. Holcombe against the Atlanta & West Point Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error. Affirmed.

Lumpkin J.

1. The main question in this case is not whether the railroad company had a custom and habit of keeping at its proper place, up to the time a train was ready to leave the depot, a stool used for assisting lady passengers to enter the train but whether, on the occasion when the plaintiff below was injured, the stool caused the injury by being in the wrong place. It appears from the evidence that the proper use of such a stool would require its being kept on the ground or floor at the foot of the steps of the car until the train was about to depart; and the fact that such use was generally made of it would be almost, if not quite, as apparent from the other circumstances in proof as if defendant's witness had been permitted to swear the company did have such a custom. Testimony, therefore, to the effect that it was the custom and habit of defendant's servants to take up the stool just as the train was ready to pull out of the depot and not 10 minutes before, would, of itself, be of but little probative value upon the real question at issue Doubtless the jury understood, without such testimony, what was usually the company's habit as to this stool; and the chief thing for their determination was, not the existence or...