Chapman v. The Atlanta

• Decision Date: 28 February 1885
• Citation: 74 Ga. 547
• Parties: Chapman, next friend. vs. The Atlanta and West Point Railroad.
• Court: Georgia Supreme Court

74 Ga. 547

Chapman, next friend. vs. The Atlanta and West Point Railroad.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1885.

Pleadings. Justification. Practice in Superior Court. Torts. Before Judge Harris. Campbell Superior Court. August Term, 1884.

Reported in the decision.

Thos. W. Latham, for plaintiff in error.

Bigby & Dorsey; P. H. Brewster; Roan & Rosser; Reed & Reed, for defendant.

Blandford, Justice.

This was an action by plaintiff in error against defendant in error to recover damages caused by the negligence of defendant's servants in not locking or securing a turn-table, whereby the infant son of plaintiff was seriously injured. The defendant filed a plea as follows, viz.

" And now comes the defendant and admits that plaintiff was hurt by a turn-table belonging to and used by defendant at the time and place alleged and set forth in plaintiff's declaration, and that defendant was not at fault or negligent, and therefore, plaintiff is not entitled to recover."

This plea the defendant called a plea of justification. The court held that it was, and. over the plaintiff's objec-tion, allowed the defendant to open and conclude the case to the jury. This is the only error in the record which we will notice.

The plea set out is not a plea of justification, if any such plea could be filed in a case like this. To constitute a plea of justification, the facts alleged must be such as are not admissible under a plea of the general issue. See Barnes vs. Augusta Factory, 72 Ga., 217. The plea denies any negligence on the part of defendant. The plea does not relieve the plaintiff of any burden whatever, except as to the injury. We have already decided that the right to open and conclude to the jury is an important right, a denial of which unlawfully will work a reversal. Phelps vs. Thurman, decided at this term.

Judgment reversed.