Dempsey v. City of Rome

• Decision Date: 27 July 1896
• Citation: 27 S.E. 668,99 Ga. 192
• Parties: DEMPSEY v. CITY OF ROME.
• Court: Georgia Supreme Court

27 S.E. 668

99 Ga. 192

DEMPSEY v. CITY OF ROME.

Supreme Court of Georgia

July 27, 1896

Syllabus by the Court.

1. Although a charge to the effect that if a physical injury to the plaintiff resulted from the mutual negligence of both parties, and if the plaintiff contributed "three-fourths or one-third or some other amount to the injury," his recovery would be reduced by the amount of his default, was under the ruling of this court in Railroad Co. v Newman, 21 S.E. 219, 94 Ga. 560, incorrect, yet, where the only complaint made of such charge is that it was erroneous because "any contributory negligence on the part of the plaintiff would defeat a recovery," the giving of such charge is not cause for a new trial.

2. This court having decided when this case was before it at the March term, 1894, that it was error to grant a nonsuit, and the plaintiff's evidence at the trial now under review being substantially the same as at the first trial, and one new trial having since then been granted by the trial court it was error for that court to grant a second new trial, it appearing that the case really turned upon the credibility of witnesses, that the jury believed those introduced for the plaintiff, and that their evidence was amply sufficient to warrant a recovery.

3. Irrespective of the question made by the charge complained of, the court did not abuse its discretion in granting a second new trial. This is so for the reason that the verdict was against the decided weight and preponderance of the evidence. That it is not only the right, but the duty, and a trial judge to grant two or more new trials in such cases, is demonstrated by the clear and able opinion of Clarke, J., in Taylor v. Banking Co., 5. S.E. 114, 79 Ga. 330. Per Lumpkin J., dissenting.

Error from superior court, Floyd county; W. T. Turnbull, Judge.

Action by Richard Dempsey against the city of Rome. There was a verdict for plaintiff, and the court granted a new trial, and plaintiff brings error. Reversed.

The following is the official report:

Dempsey sued the city of Rome for damages from personal injuries which he alleged he sustained from catching his foot at night in a hole in a plank crossing on a street of Rome, whereby he was violently thrown to the ground, and the neck of his left thigh bone was fractured, and his left leg permanently weakened, and two ribs on his left side were fractured which, penetrating the pleura of the left lung, caused inflammation of the same, and resulted in pleurisy, the effect of which was to...