East Tenn. v. & G. Ry. Co

• Citation: 15 S.E. 778,90 Ga. 23
• Court: Supreme Court of Georgia
• Decision Date: 27 August 1892
• Parties: East Tennessee, V & G. Ry. Co. v. Fleetwood.

15 S.E. 778

90 Ga. 23

East Tennessee, V & G. Ry. Co.

v.Fleetwood.

Supreme Court of Georgia.

Aug. 27, 1892.

Carriers—Injury to Passenger — Assault by Conductor—Provocation — Absence of Witness—Continuance — Opening and Closing— Instructions.

1. There was no error in refusing a continuance to a railway company on the ground of the providential absence of its "law agent, " whose duties were to get up evidence in all cases in the court wherein the continuance was asked, to secure the attendance of witnesses, assist counsel in the trial of cases, prepare cases for trial so far as the evidence was concerned, and also had charge of all papers and documentary evidence connected with the litigation; it not appearing in the particular case in question how or why defendant's counsel could not go safely to trial in the absence of such "agent."

2. A continuance will not be granted in a civil case for the absence of a witness who has been subpoenaed, but does not reside in the county where the suit is pending, even though the witness had resided in that county, and defendant's agent, by whom the subpoena was served, believed he still lived there, it appearing that such nonresidence could have been easily ascertained by the exercise of proper diligence.

3. Where a railroad conductor, without apparent provocation, rudely assaulted a passenger, used to him grossly opprobious and insulting language, caught hold of him roughly, and pulled him to the end of the car, threatened to kill him, appeared about to draw a pistol on him, and spit tobacco juice in his face, the company is liable for punitive damages, and will not be permitted to prove in mitigation thereof that on some previous occasion the passenger had used slanderous and indecent language about the conductor's sister-in-law, and" that this was the reason of the conductor's conduct, it being the first meeting between them since the alleged language of the passenger had been communicated to the conductor, when it does not appear how long before the assault the passenger had spoken the words ascribed to him, or how long the conductor had been informed

'thereof. If such facts could be received at all in mitigation of damages, their occurrence must have been so recent as to indicate that the conductor acted under the immediate provocation thereof, and had not had time to control the passion produced thereby.

4. When a witness for the defendant is offered to prove facts which the court rejects as irrelevant, and no evidence is introduced by the defendant, his counsel are entitled to open and conclude the argument, but the opening and conclusion are lost if they prove by this witness any facts that are material to the defense.

5. A charge of the court to the effect that sneers, looks, and contemptuous gestures will not justify an assault by a conductor upon a passenger, and that a railroad company is not released from its contract guarantying polite and courteous treatment to a passenger because the passenger does not smile upon the conductor, or because he wears a frown, is not erroneous. Failure to charge that such conduct of the passenger could be considered in mitigation of the damages is no cause for a new trial when no request to so charge was made.

6. The verdict, though very large, is not so excessive as to authorize this court to set it aside after it has been approved by the trial court.

(Syllabus by the Court.)

Error from superior court, Pulaski county; D. M. Roberts, Judge.

Suit by W. N. Fleetwood, Jr., against the East Tennessee, Virginia & Georgia Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

The following is the official report:

Fleetwood sued the railway company for damages, and obtained a verdict for $4,375. A new trial was denied, and the defendant excepted. The plaintiff alleged that on August 3, 1889, he was a passenger on the defendant's train from Cochran to Hawkinsville; that when about two miles from Cochran, and in the regular passenger coach, Davis, the conductor in charge and control of the train, demanded and received his fare, which was willingly and promptly paid; that be had not spoken or done aught to Davis, or had anything to do with him, directly or indirectly, but, as soon as Davis had collected his fare, he (Davis) immediately began willfully and maliciously to "use of and to him the words, "You God damn little son of a bitch, " and other profane epithets, and threatened to kill him. at the same time throwing his hand behind to his hip pocket, as if to draw a pistol, and willfully and maliciously did spit in plaintiff's face, and in abusive terms and profane language ordered him to get up from his seat and retire to the rear of the car, and assaulted him, seizing him violently by the arm, and attempted to do him serious bodily harm and injury, —all of which was done by Davis in the sphere and prosecution of his duties to the defendant.

The first special ground of the motion for' a new trial alleges error in overruling a motion for continuance on account of the absence of Jordan, defendant's law agent, and of Hendley, a witness by whom the defendant expected to prove that the conductor did not spit in the plaintiff's face; counsel stating that they did not know until the day of the trial, and just before any testimony was offered, that Hendley was a witness, or what he would testify; the matter of getting up the evidence and securing the attendance of witnesses, and the preparation of the case, so far as the evidence was concerned, being left entirely with Jordan, the law agent; that...