Central R. & Banking Co. v. Murray

• Decision Date: 29 July 1895
• Citation: 22 S.E. 972,97 Ga. 326
• Parties: CENTRAL RAILROAD & BANKING CO. v. MURRAY.
• Court: Georgia Supreme Court

22 S.E. 972

97 Ga. 326

CENTRAL RAILROAD & BANKING CO. v. MURRAY.

Supreme Court of Georgia

July 29, 1895

Syllabus by the Court.

1. Where, from extreme old age and both physical and mental infirmity, a witness has become incompetent to testify as to facts once within his knowledge and memory, and it appeared that he was likely to remain in this condition or grow worse there was no abuse of discretion in admitting in evidence his testimony introduced at a former trial of the same case, when he was not so much afflicted with these infirmities.

2. The law of this case, as announced by this court in 20 S.E. 129 and 93 Ga. 256, was substantially administered at the trial now under review. If any errors were then committed, they could not have resulted in any material injury to the defendant, and are not of such weight and importance as to require a new trial. There was evidence sufficient to warrant the verdict; and there having been already three trials of this case, each resulting in a verdict for the plaintiff this court will not control the discretion of the trial judge in refusing to set the last one aside.

Error from superior court, Houston county; J. L. Hardeman, Judge.

Action by J. J. Murray against the Central Railroad & Banking Company. Plaintiff had judgment, and defendant brings error. Affirmed.

Where from old age and infirmity, a witness is incompetent to testify, it is proper to admit testimony given by him at a former trial.

The following is the official report:

J. J. Murray sued the railroad company for damages which he alleged he sustained by the setting fire to, by sparks negligently thrown out from defendant's train, and the consequent burning of, growing timber, fencing, leaves, and litter upon his land, etc. He obtained a verdict for $1,428. Defendant moved for a new trial, which was granted, and the granting of which was affirmed by this court. 90 Ga. 83, 15 S.E. 645. The case was again tried, and resulted in a verdict for plaintiff for $700. A new trial was denied, and defendant excepted to this ruling and to the overruling of a demurrer. This court held that the declaration was sufficient, but that a new trial should have been granted. 93 Ga. 256, 20 S.E. 129. The third trial resulted in a verdict for plaintiff for $1,079.68. Defendant's motion for a new trial was overruled, and it excepted.

The motion contained the general grounds that the verdict was contrary to law, evidence, etc.; and, further, that it was excessive, and contrary to certain specified portions of the charge. Further, because the court erred in ruling as follows: H. W. English, a witness for plaintiff, having testified: "I don't recollect of Mr. Murray selling any oak cordwood. I couldn't say of my own knowledge that he every sold any. Don't know that he ever had any offer for it, and don't know what the demand for cordwood was at that time. I do know of a demand for wood just as it stood on the land; that is, there is a demand now,--buy it just as it stands; buy it, and then cut it off. There was a demand for it in 1890, just as it stood on the land. I only know this because I had men to tell me so. I never sold any myself. A man living close to me sold some,"--he was asked, "You didn't see him do it? You only know from what he told you?" and answered, "No, sir." After the witness had thus testified, plaintiff proposed to prove by him that there was a market value for timber standing on the land, and also that plaintiff could have gotten 50 cents a cord for his timber standing on the land as near to Macon as plaintiff's. Defendant objected, on the ground that the witness had stated he had never sold any timber that way, and never saw any sold, and could only speak from what others told him, and therefore the matter about which it was proposed he should testify appeared to be not within his own knowledge. The objection was overruled, and the witness permitted to testify that plaintiff could have gotten 50 cents a cord for his timber standing, to which ruling defendant excepts. Plaintiff proposed to prove by John Murray that the wood alleged to have been injured and destroyed by fire was, in the witness' opinion, worth 50 cents per cord standing on the ground before it was burned. Defendant objected, on the ground that plaintiff could only show the value of the timber in its then state on the land by evidence as to what he could have realized from it by appropriating it to use himself, to the extent of any demand for it made by his own wants at and about the time of the fire, and by selling it to others to the extent of any demand that then existed for it; defendant contending that it was incompetent to show witness' opinion as to what the wood was worth per cord, without requiring the witness to show that such demand existed and the extent to which it existed, and then confining his testimony to its value as ascertained from the extent of such demand. The objection was overruled, and the witness was permitted to testify that he thought the wood standing on the ground before it was burned was worth 50 cents per cord. To this ruling defendant excepts. Plaintiff proposed to prove by John Murray that about 100 rails would make a cord of wood. Defendant objected to this line of testimony, on the ground that the value of the timber destroyed in the rails as cordwood was not a proper measure of the damages for the destruction of the rails. The court permitted the testimony, holding it admissible simply for the purpose of fixing the value of the rails. Thereupon plaintiff, after proving by the witness that it would cost 50 cents per hundred to cut and split rails, and another 50 cents to haul them and put them up, proved...