Foster v. Atlanta Rapid Transit Co

• Decision Date: 04 March 1904
• Citation: 46 S.E. 840,119 Ga. 675
• Parties: FOSTER . v. ATLANTA RAPID TRANSIT CO.
• Court: Georgia Supreme Court

46 S.E. 840

119 Ga. 675

FOSTER .

v.ATLANTA RAPID TRANSIT CO.

Supreme Court of Georgia.

March 4, 1904.

NEW TRIAL—HEARSAY EVIDENCE.

1. The admission, over the objection of a party, of hearsay evidence, the natural tendency of which was to discredit his witnesses and prejudice his case, requires the grant of a new trial, when it is applied for upon this ground.

(Syllabus by the Court.)

Error from City Court of Atlanta; A. E. Calhoun, Judge.

Action by Frank Foster, by his next friend, Henry Foster, against the Atlanta Rapid Transit Company. Judgment for defendant, and plaintiff brings error. Reversed.

Rucker & Rucker, for plaintiff in error.

Rosser & Brandon and W. T. Colquitt, for defendant in error.

FISH, P. J. Frank Foster, by his next friend, Henry Foster, brought suit in the city court of Atlanta against the Atlanta Rapid Transit Company, a street railroad company, for damages. The petition alleged that Frank Foster, while a passenger on a car of the defendant company, and prepared to pay his fare, was, without warrant or authority of law, pushed and kicked from the same by the conductor in charge of the car, whereby he sustained certain specified injuries. The defendant company, by its answer, denied that its conductor committed any of the acts charged in the petition. On the trial of the case there was a sharp conflict in the testimony introduced by the parties. The jury found a verdict for the defendant. The plaintiff made a motion for a new trial on the usual grounds, to which, by amendment, there was added one other. This last ground alleged error in the following ruling of the court: L. O. Simmons, a witness for the defendant, testified that the names of the persons who were on the carthat night were turned over to him, and he went to see them. The court then, over the objection of plaintiff's counsel, allowed him to testify as follows: "I did not subpœna them because they did not know anything about it. They said they did not know anything about the transaction, and so I did not need them." The objection made to the admission of this testimony was that it "was incompetent, irrelevant, immaterial, and hearsay." The motion for a new trial alleged that this testimony was hurtful to the plaintiff, because two witnesses for the plaintiff had sworn that the conductor came into the car after he had kicked the plaintiff, Frank Foster, off, and said, "I am going to kill a lot of them little sons of bitches, " and "further stated he was going to kill a lot of them damned little niggers, and laughed about it." In a note to this ground, the trial judge states: "The court stated to the jury that he let this evidence in to account for the nonproduction of the witnesses, and not for the purpose of proving facts." The record shows that one of the witnesses who swore that the conductor made the statements mentioned above testified that others on the car heard these statements. According to the testimony of the conductor, there were many people on the car at the time it was alleged he kicked and pushed the plaintiff off, especially at and near the end of the car where this was...