City Electric Ry. Co v. Smith

• Decision Date: 27 January 1905
• Citation: 121 Ga. 663,49 S.E. 724
• Parties: CITY ELECTRIC RY. CO. v. SMITH.
• Court: Georgia Supreme Court

49 S.E. 724

121 Ga. 663

CITY ELECTRIC RY. CO.

v.SMITH.

Supreme Court of Georgia.

Jan. 27, 1905.

TRIAL — SEPARATION OF WITNESSES — STREET RAILROADS—INJURIES TO PASSENGER — EVIDENCE—NEW TRIAL—DAMAGES—OPINION EVIDENCE—CREDIBILITY OF WITNESSES.

1."Where there is an order for the separation of witnesses, exceptions therefrom as to witnesses not parties to the case are discretionary with the court."Central Railroad Co. v. Phillips, 17 S. E. 952, 91 Ga. 526.

2.Plaintiff testified that he had ridden on defendant's cars six or seven times daily for several years; that he knew their usual motions and movements; that the jerk which it was claimed caused his injury "was an unusual jerk, in that it was very severe.It was a sudden jerk.Witness means by 'severe jerk' that it jerked him with such force that when he caught hold of the railing on the rear end of the car it jerked his hold loose.It was with such force that witness could not hold on to the bar."Held, that permitting the witness to testify that it "was an unusual jerk" was not cause for a new trial.Civ. Code 1895, § 5285.

3.Where in an action for personal injuries one of the items of the damages claimed was the decreased capacity of the plaintiff to labor and earn money, and the petition alleged that at the time the injuries were received plaintiff was capable of earning and was receiving $100 per month, evidence that, but for the injuries, he could earn $150 per month, was admissible, not as a basis for a recovery at that rate, but as tending to show that plaintiff was capable of earning the amount alleged in the petition.SeeSouthern Bell Tel. Co. v. Lynch, 20 S. E. 500, 95 Ga. 529 (2).Where the defendant objected to the admission of such evidence on the ground that "plaintiff was limited by his declaration to a capacity of $100 per month, " its admission, without an instruction by the court properly limiting its consideration by the jury, was not cause for a new trial, when it appeared from the amount of the verdict, considered in connection with the undisputed evidence in the case, that the defendant was not hurt by the failure to give such instruction.

4.In such a case it was competent for the plaintiff, after giving his reasons therefor, to testify as to what, in his opinion, his services would be worth but for his injuries.Civ. Code 1895.§ 5285.

5.Refusing to allow a question to be propounded in a particular form to a witness, even if erroneous, is not cause for a new trial, when it appears that in response to other questionsby the same party all that the witness knew on the subject was fully brought out.Elliott v. Banks.42 S. E. 218, 115 Ga. 926.

6.Where the plaintiff testified that when riding on one of the electric cars of the defendant company he was thrown therefrom by a sudden jerk of the car, it was not error to allow a witness to testify, over d...