Gamble v. Central R.R.

• Decision Date: 24 February 1885
• Citation: 74 Ga. 586
• Parties: GAMBLE v. THE CENTRAL RAILROAD.
• Court: Georgia Supreme Court

74 Ga. 586

GAMBLE v. THE CENTRAL RAILROAD.

Supreme Court of Georgia.

February 24, 1885

February Term, 1885.

1. A case was tried in Talbot superior court, a motion for new trial was made, and a consent order was taken to hear it at chambers, at Columbus, during vacation. At the time fixed the judge was engaged in holding the superior court of Harris county, and could not preside at chambers in accordance with the order, and therefore passed an order continuing the hearing:

Held, that the facts were equivalent in effect to a case of providential cause; and the hearing could be so continued, though the order was passed in another county than that in which such hearing was to be had. Therefore it was not error to refuse to dismiss the motion on that ground.

( a. ) Where the consent order did not require the approval of the brief of evidence at the first time and place set for the hearing, but that it should be there, and it was there, and presented for approval by counsel for movant, but the judge stated that he would approve it at the time to which the hearing had been continued, there was no laches on the part of the movant so as to cause a dismissal of his motion.

2. The first grant of a new trial and the grounds of the motion will not be scrutinized closely by this court in order to reverse the judgment, only one verdict having been rendered, and the presiding judge being dissatisfied therewith.

3. The right of cross-examination should not be restricted especially where the witness is the opposite party seeking to recover damages on the basis of his own testimony. When therefore, a suit was brought to recover against a railroad on account of permanent injuries alleged to have been caused by the negligent running of its trains, and as part of the injury, the plaintiff claimed that his nervous system was wrecked, it was admissible, on cross-examination, to prove his skill as a billiard player.

New Trial. Practice in Superior Court. Laches. Witness. Evidence. Before Judge WILLIS. Talbot Superior Court. September Term, 1884.

Gamble brought suit against the Central Railroad to recover damages for a personal injury resulting from one of its trains, on which he was a passenger, running off the track. He recovered a verdict for $7,750.00. Defendant moved for a new trial, on several grounds, and subsequently amended his motion by adding others. It is only necessary to set out two of them:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court refused to allow defendant's counsel to ask plaintiff, on cross-examination, the following questions " Are you not a good billiard player? Do not you now frequently play?" [The plaintiff had testified that his spinal column was badly injured and his nervous system shattered, producing injury to his eyes, ears and head. The avowed object of this question was to show that his spinal column was not injured to the extent claimed.]

A consent order was taken during the term of the trial, allowing the stenographer until Tuesday, October 14, 1884, to transcribe and furnish the brief of evidence to counsel, and providing that, when it was completed, the motion should be heard in vacation at that time, unless continued by the court or consent of counsel to some other day and place; also that defendant's counsel might amend their motion for anew trial at or before the hearing, and that the brief of evidence, when perfected and approved, might be filed in office after the hearing.

On October 14, 1884, an order was passed, reciting that, counsel for the movant being engaged in the Supreme Court, and parties consenting thereto, the hearing should be postponed until Friday, October 24, at Columbus, unless continued by the court to some other time.

On October 24, an order was passed, reciting that it was impossible for the judge to hear the motion, he being engaged in the trial of the criminal docket of Harris superior court, and ordering that the hearing be continued until Saturday before the third Monday in November, 1884, and that the motion should be heard at Columbus unless continued by the court or consent of counsel.

On November 15, at chambers, at Columbus, another order was passed, reciting that one of counsel for the plaintiff was too unwell to be present at the hearing, and the parties consenting thereto, the hearing should be continued until November 25, at Columbus, unless continued by consent or by order of court. Each of these orders, except the first, provided that the continuance was made without prejudice to either party.

At the hearing on November 25, counsel for the plaintiff moved to dismiss the motion for new trial, on the grounds that the order passed during the term at which the trial was had was not complied with; that no brief of evidence was agreed upon approved or filed before or during the day set for the hearing (October 14, 1884), or on the day of the last continuance at Columbus; because no consent in writing to continue the hearing of the motion was had on October 14, or on October 24, or at any other time before the hearing at Columbus; because no consent of any sort was had to have the motion heard at any other time or place than at Hamilton on October 14, except to the last continuance, when the right to except was distinctly reserved; and because the order granting the continuance at Hamilton on October 14...