Davis v. The Cent. R.R.

• Decision Date: 31 January 1878
• Citation: 60 Ga. 329
• Parties: Davis. v. The Central Railroad.
• Court: Georgia Supreme Court

60 Ga. 329

Davis. v. The Central Railroad.

Supreme Court of the State of Georgia

(January Term, 1878.)

*Interrogatories. Practice in the Superior Court. Charge of Court. Witness. Damages. New Trial. Before Judge Hillyer. Fulton Superior Court. April Term, 1877.

Rebecca B. A. Davis, an infant, by her next friend, brought case against the railroad company for $10,000.00 damages, alleged to have been sustained by her on account of a collision of trains, upon one of which she was a passenger, through the negligence of the defendant; she alleged that in addition to other injuries sustained, she had been made permanently deaf and dumb. The defendant pleaded the general issue.

There was no question made as to the collision having been caused by the negligence of the defendant. The great point of contention was as to the amount of damages to which plaintiff was entitled. At the time of the injury she was not quite two months old. She was, at the time of trial, deaf and dumb. Both her parents were deaf mutes. It was asserted, and evidence to that effect was introduced, that the injury on the train caused her unfortunate condition. This was denied, and evidence introduced to the contrary. The testimony was voluminous and conflicting, consisting largely of that of experts.

The jury found for the plaintiff $700.00. The plaintiff moved for a new trial upon the following grounds:

1st. Because the court allowed the defendant to read in evidence the answers of Dr. Abner W. Calhoun to written interrogatories under the following state of facts:

At the request of counsel for defendant, Dr. Calhoun had, on November 21st, 1875, visited the plaintiff near Rockmart, Georgia, for the purpose of making an examination of her organs of hearing. In the spring of 1877. counsel for plaintiff prepared interrogatories for said Calhoun which were crossed by counsel for defendant. On the back thereof was written the agreement copied in the first head-note. On June 14th the witness delivered the interrogatories andanswers to the clerk of court. On June 22nd, counsel for *plaintiff indorsed on the package the following: "Plaintiff objects to these interrogatories because the first question in the sixth direct interrogatory is not answered, and because the second, third, and fourth questions in the seventh direct interrogatory are not answered." The trial commenced on June 26th, and terminated June 29th. Before the case was submitted to the jury, counsel for plaintiff moved to suppress and exclude the answers. The motion was overruled.

2nd. Because the court erred in each of the following charges: (a.) "The burden of proof is on the plaintiff to show that damages or injuries were caused by the defendant, and hurts received by that collision, and if the evidence be equally balanced for plaintiff and defendant on any contested point, you should find that part of the case in favor of the defendant."

(b.) "By our law, the parties litigant in a case are permitted to be witnesses. The interest of a party to a case affects his credit. But this does not mean that the jury should disbelieve a witness who is a party to, or interested in, a suit, but that to a certain extent the witness is affected, and the jury are the judges of his evidence as thus affected. Weigh and compare it with all the testimony in the case, and give to it the value which his relation to the case satisfies the jury it ought to receive."

(c.) "With reference to this case, there is no known rule of law by which witnesses can give to you the amount in dollars and cents as to the amount of injury, but this is left to the enlightened conscience of an impartial juror. This does not mean that juries can arbitrarily crush one party at the expense of the other, nor that they should act unreasonably through mere caprice. But it authorizes you to give reasonable damages when the proof shows that the law authorizes it. But the jury should exercise common sense and love of justice, and from a desire to do right, fix an amount that will fairly compensate for the injury received."

332##3rd. Because the damages found were unreasonably small, *and because the verdict was contrary to the law and the evidence.

The motion was overruled and the plaintiff excepted.

E. N. BroyleS, for plaintiff in error.

N. J. Hammond, for defendant.

Bleckley, Judge.

1. So far as it appears, there was no obstacle to a further examination of the witness. The direct, not the cross, interrogatories were answered short. The plaintiff, when this was discovered, should have taken steps to have the witness reexamined. It was not the fault of the defendant that the answers were deficient in fullness. Under the consent, the plaintiff was in a situation where the reading of the answers could havebeen forced upon the defendant. The cross-interrogatories were all answered, and that being so, the defendant could not have hindered the reading. Was it, then, at the option of the plaintiff whether the reading should take place or not? The parties had, by consent, cut loose from the general law. They had made a conventional law of their own; consequently, § 3892 of the Code was without application. That section touches exceptions to the execution and return of commissions. Here there was no commission; and notice of objection, if delayed as long as that section allows—that is, until just before the case is submitted to the jury—would...