Central of Georgia Ry. Co. v. Clark

• Court: Georgia Court of Appeals
• Writing for the Court: RUSSELL, C.J.
• Citation: Central of Georgia Ry. Co. v. Clark, 15 Ga.App. 16, 82 S.E. 600 (Ga. App. 1914)
• Decision Date: 22 August 1914
• Docket Number: 5419.
• Parties: CENTRAL OF GEORGIA RY. CO. v. CLARK.

82 S.E. 600

15 Ga.App. 16

CENTRAL OF GEORGIA RY. CO. v. CLARK.

No. 5419.

Court of Appeals of Georgia

August 22, 1914

Syllabus by the Court.

The trial was free from error, and the amount of the verdict cannot be said to be excessive, since the jury would have been warranted in finding that amount in compensation for the plaintiff's pain and suffering as disclosed by evidence credible to the jury. Powell v. Railroad, 77 Ga 192, 3 S.E. 757.

The law ordinarily provides for but one trial for the adjudication of the rights of litigants, and a motion for another trial upon the ground of newly discovered evidence is for that reason necessarily extraordinary. Since it is to the interest of the commonwealth that there should be an end to litigation "motions for new trial upon the ground of newly discovered evidence are not favored by the law and should not be. They are tolerated where it is apparent that grave injustice would result unless the newly discovered evidence is admitted on another trial, and only then when it is clear that ordinary diligence could not have discovered the evidence sought to be adduced, and that a different result in view of the discovery, ought to obtain." Morris Storage Co. v. Wilkes, 1 Ga.App. 754, 58 S.E. 234.

Error from City Court of Sandersville; E. W. Jordan, Judge.

Action by W. F. Clark against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Saffold & Jordan, of Swainsboro, Lawton & Cunningham, of Savannah and J. J. Harris, of Sandersville, for plaintiff in error.

Claude Estes, O. C. Hancock, and Ben J. Fowler, all of Macon, and A R. Wright, of Sandersville, for defendant in error.

RUSSELL C.J.

The action was for $15,000 damages, on account of personal injuries. The verdict was for $8,750. The defendant introduced no testimony, and in the argument here it was stated that, since there was a collision of two of the defendant's trains, liability for slight injury to the plaintiff was admitted, but it was insisted that he suffered no serious or permanent injury. In addition to the general grounds of the motion for a new trial, the defendant asked that the verdict be set aside for the reason that material evidence was discovered subsequent to the trial, which would and should produce a different result upon another investigation of the case. This ground is strongly pressed upon our consideration, and it is insisted that the refusal to grant a new trial upon this ground amounted to an abuse of discretion.

The evidence submitted by the plaintiff and his attending physician, as to the gravity and permanence of his injuries, fully supported the verdict, and, though it is argued that the amount of the verdict is excessive, this contention cannot be sustained, for, under the evidence, the jury would have been authorized to award that amount for pain and suffering alone. In addition to this, there was evidence that the plaintiff's earning capacity had been seriously impaired. Certain general propositions in reference to motions for new trial based upon the ground of newly discovered testimony are code law and axiomatic. In the first place, the grant of a new trial upon the ground of newly discovered testimony is not favored, as we pointed out in the case of Morris Storage Co. v. Wilkes, 1 Ga.App. 754, 58 S.E. 232, and it should not be, because diligence in the ascertainment of all the facts relative to the cause should be exercised in advance of the trial, and post mortem diligence should not be encouraged.

One fair and legal trial is all the law promises to any litigant whose rights are the subject of adjudication, and ordinarily one trial, if no error of law is committed, suffices to test the rights of the respective parties. Instances sometimes occur where the truth is concealed, in spite of the exercise of proper diligence, and upon the discovery of the real facts it is apparent that injustice will probably result unless an investigation be had, in which the material facts which have come to light may be weighed in connection with the testimony previously adduced, in the absence of these newly discovered facts. In such a case, when it is probable that a different finding will be reached, a new trial should be granted upon the ground of newly discovered evidence, in order that justice may be done. And this is true, as has been frequently held, even though the newly discovered testimony may be, in a certain sense, cumulative and may impeach testimony previously adduced. But since a motion for new trial, based upon alleged newly discovered testimony, which presumably could not have been obtained by the exercise of ordinary diligence before the trial, is, in its very nature extraordinary, our courts have frequently held that the merits of this ground are necessarily largely addressed to the discretion of the trial judge, and that this discretion will not be controlled unless it has been abused. In the present case the newly discovered testimony is confined to the single point of attempting to show that the plaintiff's injuries were not as serious as stated by himself and his witnesses, but were in fact trivial and insignificant. One witness testified, upon the hearing of the motion, that he accosted the plaintiff in a barber shop, shortly after the collision, and stated to him that he thought the plaintiff was hurt in the wreck, and that the plaintiff replied to this that he had not received any injury to amount to anything. Another witness testified that he accompanied the plaintiff on a "trip to Mars," an amusement device in which the participants were carried up a confusing revolving stair, and thrown down an inclined plane on a cushion, about 20 feet; it being the contention of the defendant that no person injured as the plaintiff claimed to have been injured could take this "trip to Mars" without visible and audible expressions of pain. A third witness testified by affidavit that he was employed, after the trial, as a Pinkerton detective, and shadowed the plaintiff for several days to various questionable resorts and bagnios, which the plaintiff visited with such frequency as to rebut the inference that he was not an extremely healthy and vigorous man. There was a counter showing before the trial judge as to the testimony of each of these witnesses, and, without recapitulating the contents of the counter showing, it suffices to say that, if the testimony of the witnesses in support of the counter showing was credible, every statement made in support of the motion for a new trial was discredited. In this state of the record counsel for plaintiff in error insists that a new trial should be granted, and that the conflict in the testimony, as developed upon the motion for a new trial, should be submitted to a jury. Couns...