Central R. & Banking Co. v. Attaway

• Decision Date: 04 January 1893
• Parties: CENTRAL RAILROAD & BANKING CO. v. ATTAWAY.
• Court: Georgia Supreme Court

16 S.E. 956

90 Ga. 656

CENTRAL RAILROAD & BANKING CO. v. ATTAWAY.

Supreme Court of Georgia

January 4, 1893

Syllabus by the Court.

1. Where the declaration alleged that the plaintiff was injured by the defendant's negligence in using certain defective tools, the court was authorized to charge as to negligence in using them in an unskillful manner, especially as the plaintiff was allowed to introduce evidence on this point without objection.

2. Where the testimony of witnesses is conflicting, it is not error for the court to instruct the jury that they should believe the witness or witnesses whom they consider most worthy of belief, and that, in order to arrive at a conclusion as to which are most worthy of belief, they may look to the manner of the witnesses while testifying, their means of knowledge as disclosed by the evidence, and their bias or prejudice, if any has been shown by the testimony and should see to what extent they have been impeached or corroborated, if at all.

3. Where it appeared from the evidence that the plaintiff was one of several hands engaged in using the tools which were alleged to have caused the injury, though not actually using them himself when the injury occurred, but merely standing by, ready to assist the others who were using them, it was not error, as against the defendant, for the court to charge as if the plaintiff was using them.

4. Where an employer furnishes tools to his employes which are reasonably safe if used in a proper manner, and an employe is injured by their use in some improper manner, which he could not have foreseen, a charge that he could not recover if he could have avoided the consequences of the employer's negligence by the use of ordinary care would not be applicable, because no one who is himself free from fault is bound by this rule unless he sees the danger, or has reason to apprehend the same.

5. The court did not err in refusing a new trial.

Error from city court of Macon; John P. Ross, Judge.

Action by Alexander Attaway against the Central Railroad & Banking Company for personal injuries caused by defendant. There was a verdict for plaintiff, and, defendant's motion for a new trial being overruled, it brings error. Affirmed.

R. F Lyon, for plaintiff in error.

John Walter Robison and M. G. Bayne, for defendant in error.

SIMMONS J., (after stating the facts.)

1. Several grounds of the motion for a new trial complain of instructions to the jury as to the right of the plaintiff to recover for negligence in the manner of handling the tools, as well as negligence in having used them in a defective condition. These instructions were alleged to be erroneous because it was not claimed in the plaintiff's declaration that his injury was caused by the improper handling of the tools. The declaration, however, charged negligence "in using the defective tools," and the plaintiff's evidence tended to show that the negligence consisted in the manner of using them, as well as in the fact of having used them in their defective condition; and this evidence was not objected to at the trial. If the allegations in the declaration did not cover negligence in the former respect, as well as in the latter, the defendant ought to have objected, or moved to rule it out. Had it done so, it would have been allowable for the plaintiff to amend so as to make the declaration more specific; but, as the evidence on this point was allowed to come into the case and remain in it without objection, the court was authorized to charge the jury upon the case as developed by the proof. Where a party permits evidence to go to the jury without objection, upon a declaration that is ambiguous, and the jury find on such evidence, the party is not entitled to a new trial on the ground that the evidence does not correspond with the declaration, if the declaration could, by amendment, have been made to clearly cover the evidence; and certainly, if the jury could consider the evidence, the court was authorized to charge upon it as a part of the case. Railroad Co. v. Barber, 71 Ga. 644, (2) 648; Howard v. Barrett, 52 Ga. 15; Railroad Co. v. Lawrence, 74 Ga. 534; Steamship Co. v. Williams, 69 Ga. 251; Haiman v. Moses, 39 Ga. 708; Pom. Rem. & Rem. Rights, § 554 et seq. And see Railroad Co. v. Hubbard, 86 Ga. 627, 12 S.E. 1020, and cases cited.

2. Certain instructions, which are substantially set out in the second headnote, are complained of, but it is not specified in what respect they were erroneous. The rule given in charge is undoubtedly correct, and we can discover no error in its application...