Augusta Ry. & Elec. Co. v. Arthur

CourtUnited States Court of Appeals (Georgia)
Citation60 S.E. 213,3 Ga.App. 458
Docket Number780.
Decision Date29 January 1908

Syllabus by the Court.

The verdict rendered in behalf of the plaintiff is not, for lack of any evidence to support it, contrary to law. When the plaintiff showed injury occasioned by the car of the defendant company, the burden of proof was shifted to the defendant, and it became incumbent upon it to show that the plaintiff consented to the injury or could have avoided it by the use of due care, or that the employés of the company exercised all ordinary and reasonable care and diligence, and the verdict of the jury that the defendant failed to carry successfully this burden is fully supported by the evidence.

[Ed Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 228, 239-250.]

The admission of testimony as to experiments must largely rest in the discretion of the trial judge, and the exercise of this discretion will not be controlled, unless manifestly abused. The weight to be attached to such testimony is for the jury and varies according to the circumstances of similarity which the jury may find to exist between the experiment made or observation taken and the actual occurrence whose facts and features are under investigation. The opinions of witnesses as to speed and distance are admissible in evidence, and computation of time and distance for the purpose of comparison is not objectionable, where it tends to enhance the accuracy and correctness of the opinion submitted.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2270.]

Error from City Court of Richmond County; W. F. Eve, Judge.

Action by C. A. Arthur against the Augusta Railway & Electric Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Boykin Wright and Geo. T. Jackson, for plaintiff in error.

Wm. H. Fleming, for defendant in error.


Mrs. Arthur recovered a verdict for $1,500 against the Augusta Railway & Electric Company as damages for personal injuries alleged to have been inflicted by the negligence of the defendant in running one of its cars on the streets of Augusta, whereby she was knocked down and her foot was crushed and mangled, rendering its amputation necessary; the injury being permanent. The defendant company moved for a new trial, and here accepts to the judgment refusing its motion. Error is assigned in the bill of exceptions on all of the grounds of the motion for a new trial. These are eight in number, but can well be grouped and considered under two heads.

1. The first five grounds are in effect the usual general grounds that the verdict is contrary to the evidence, contrary to law, without evidence to sustain it, without law to support it, and decidedly and strongly against the weight of the evidence. After a very careful review of the evidence we fail to see any merit in these grounds of the motion. There is conflict between the testimony in behalf of the plaintiff and that in behalf of the defendant as to several material issues in the case; but in our opinion it cannot be said that the preponderance of the testimony is in favor of the defendant. It is true that a larger number of witnesses testified in favor of the defendant than in behalf of the plaintiff; but the number of the witnesses is not a proper measure for ascertaining the preponderance of testimony. The plaintiff fully established her case by the testimony adduced in her behalf. The acts of negligence alleged are: (1) That the car was being run at an unlawful rate of speed, in excess of the maximum rate allowed by the ordinance; (2) That the motorman negligently failed to ring the bell after plaintiff was in full view of him, and when he could and should have warned her of the approach of said car; (3) that the motorman negligently failed to reverse his car, and thus stop it and prevent the casualty. The fact constituting the third allegation of negligence was proved by the motorman of the car himself, and the issue upon this is as to whether he saw the plaintiff and whether the car could more effectually have been stopped by reversing the lever and shutting off the electric current, or by applying the brakes, as he testified he did. According to the evidence in behalf of the plaintiff she had started from her home on Perkins street to visit her daughter and also to see a young lady about some sewing. When she reached Broad street she walked along that street for something like 200 feet, and was on the point of crossing over when a large brewery wagon caused her to stop on the sidewalk until it passed. As it passed she looked to see if a car was approaching, and none was in sight. She then proceeded slowly diagonally across the street, and when she had gone only a little over 20 feet she was suddenly overtaken by a car, which came up on her side, slightly to her rear, and knocked her down, ran over her foot, and caused the injuries alleged in the petition. She had looked, not more than three seconds before, for a car from the direction from which the car that caused her injuries came, and none was in sight. No gong was sounded, nor was any other signal of the approach of the car given. The car went about two lengths after running over her foot, and then backed to where she was. From the testimony in her behalf, as we have stated above, the plaintiff was entitled to a recovery, and the amount of the recovery is not questioned. It is liability for any recovery which is denied.

It is not within our power to declare a verdict contrary to the evidence. We can only declare a verdict, for lack of any...

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