Atlantic Coast Line R. Co. v. Grover, 43861

• Decision Date: 02 October 1968
• Docket Number: No. 43861,No. 2,43861,2
• Citation: 118 Ga.App. 547,164 S.E.2d 356
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY et al. v. M. L. GROVER
• Court: Georgia Court of Appeals

Page 356

164 S.E.2d 356

118 Ga.App. 547

ATLANTIC COAST LINE RAILROAD COMPANY et al. v. M. L. GROVER.

No. 43861.

Court of Appeals of Georgia, Division No. 2.

Oct. 2, 1968.

Rehearing Denied Oct. 25, 1968.

Certiorari Denied Jan. 13, 1969.

Bennett, Pedrick & Bennett, Larry E. Pedrick, Wilson G. Pedrick, Waycross, for appellants.

Leon A. Wilson, II, Benjamin Smith, Jr., Waycross, for appellee.

Syllabus Opinion by the Court

HALL, Judge.

The defendant appeals from a judgment against it upon a verdict of $65,000 and from the overruling of its motion for new trial.

1. The first four enumerations of error contend that the trial court erroneously admitted certain opinion testimony of State patrolmen and a sheriff to which the defendant objected at the trial. The admission of this evidence, if error, does not require the grant of a new trial because the defendant elicited testimony substantially to the same effect on cross examination of the same witnesses and did not object to testimony comparable in import by another witness. Chatham Amusement Co. v. Perry, 216 Ga. 445, 449, 117 S.E.2d 320; Rabun v. Wynn, 209 Ga. 80, 83, 70 S.E.2d 745; Fluker v. State, 184 Ga. 809, 193 S.E. 749; Simmons v. State, 34 Ga.App. 163, 164, 128 S.E. 690; Southeastern Greyhound Lines, Inc. v. Hancock, 71 Ga.App. 471, 472, 31 S.E.2d 59; Kell v. Hunter, 84 Ga.App. 792, 795, 67 S.E.2d 597; King v. Sharpe, 96 Ga.App. 71, 79, 99 S.E.2d 283; Lumbermen's Underwriting Alliance v. First National Bank & Trust Co., 100 Ga.App. 217, 222, 110 S.E.2d 782; Grain Dealers Mut. Ins. Co. v. White, 103 Ga.App. 260, 262, 119 S.E.2d 38; Atlantic Coast Line R. Co. v. McDonald, 103 Ga.App. 328, 340, 119 S.E.2d 356; Chandler v. Alabama Power Co., 104 Ga.App. 521, 525, 122 S.E.2d 317, reversed on other grounds 217 Ga. 550, 123 S.E.2d 767; Williams Bros. Grocery Co. v. Blanton, 105 Ga.App. 314, 316, 124 S.E.2d 479; American Family Life Ins. Co. v. Glenn, 109 Ga.App. 122, 124, 135 S.E.2d 442; General Gas Corp. v. Whitner, 110 Ga.App. 878, 879, 140 S.E.2d 227.

2. The fifth enumeration is that it was error for the trial court to sustain the plaintiff's objection to the defendant's asking the plaintiff on cross examination whether the plaintiff and his brother had a suit pending for the death of their father (the present suit being for the death of the plaintiff's mother). The plaintiff contends tht the testimony sought by this questioning was proper to show the interest of the witness. The fact that the witness was the plaintiff in this case establishes his interest and adverse position to the defendant whether or not he had an interest in another suit against the defendant. We cannot see that the refusal to permit this questioning of the plaintiff was harmful or that the trial court abused his discretion in refusing to permit questioning to show further the plaintiff's interest, bias, or feeling. See Sasser v. State, 129 Ga. 541, 548, 59 S.E. 255; Loomis v. State, 78 Ga.App. 336, 354, 51 S.E.2d 33; 98 C.J.S. Witnesses § 556, p. 495.

3. The sixth enumeration contends that the court prejudicially erred in denying the defendant's motion for mistrial and failing to comply with the defendant's request to admonish plaintiff's counsel for repeatedly attempting to elicit from a witness her opinion or statement as to what was needed to protect the crossing, and then upon objection withdrawing the question. The record shows that defendant's counsel moved for mistrial 'because counsel has deliberately put before this jury the very thing he knows is illegal.' The court overruled the motion. The defendant's counsel then said, 'I ask that Your Honor then admonish counsel not to try to get before this jury evidence that Your Honor has-was ruling-or he withdrew it when I say in my opinion that he knew it was not admissible.' Plaintiff's counsel then interposed, 'Now, Your Honor, may I say * * *.' The court then said, 'All right. I've already ruled on it. I don't want to hear any more about it. Go ahead with your examination.' Both counsel then stated that they were through with the witness. Even if it be assumed that the questions of plaintiff's counsel were improper the record does not show that the trial court abused his discretion in overruling the grounds of the defendant's motions for mistrial and admonition of counsel. Hicks v. State, 196 Ga. 671, 674, 27 S.E.2d 307; Fievet v. Curl, 96 Ga.App. 535, 537, 101 S.E.2d 181; Royal Crown Bottling Co. v. Bell, 100 Ga.App. 438, 443, 111 S.E.2d 734.

4. Enumerations of error 7 through 9 contend that the court inapplicably charged the provisions of the Code, §§ 94-503 and 94-504, respecting the duty of railroad companies to keep their crossings, rights of way at crossings, and approaches thereto in good order for a traveler to get on...