Grasham v. Southern Ry. Co.

• Decision Date: 26 January 1965
• Docket Number: No. 2,No. 41116,41116,2
• Citation: 111 Ga.App. 158,141 S.E.2d 189
• Parties: Samuel E. GRASHAM v. SOUTHERN RAILWAY COMPANY
• Court: Georgia Court of Appeals

Page 189

141 S.E.2d 189

111 Ga.App. 158

Samuel E. GRASHAM v. SOUTHERN RAILWAY COMPANY.

No. 41116.

Court of Appeals of Georgia, Division No. 2.

Jan. 26, 1965.

Rehearing Denied Feb. 8, 1965.

Syllabus by the Court

1. The verdict is supported by the evidence, which was in conflict on the issues.

2. A ruling on the sustaining of objections to an amendment is not reviewable in a motion for new trial. Manry v. First Nat. Bank, 195 Ga. 163, 165(2), 23 S.E.2d 662.

3. Rulings on objections to interrogatories under Code Ann. § 38-2109(b) and other discovery rulings made prior to trial must be reviewed by direct exception rather than by motion for new trial.

4. Where a party moved to strike a juror for cause when on voir dire he expressed an opinion favorable to the opposite party, and the motion was denied, whereupon the juror was preemptorily challenged, the trial judge's ruling was proper where it did not appear that: (a) the juror's opinion was shown to be so firm or fixed as to be unyielding, and (b) that harm resulted.

5. Where a party moved to strike a juror for cause when on voir dire he expressed an opinion favorable to the opposite party, and the motion was granted, any error in granting the motion was harmless if a competent and unbiased jury was finally selected.

6. The admission of photographs of the collision area taken during the daytime when the collision happened at night was in the discretion of the trial judge.

7. A charge containing a slip of the tongue is not error where the jury could not have been misled or confused.

8. It is not reversible error for the judge to state in his charge that the 'defendant contends in his argument' that a specific Code section was violated by the plaintiff where the contention is supported by the pleadings and the evidence.

9. The repetition of certain correct legal principles in the charge was not error, it not appearing that the jury was misled or wrongfully influenced.

This case involves a collision between an automobile and a train at a grade crossing in which it appears that the automobile lost at the crossing and the driver lost before the jury. An amended motion for a new trial was overruled and the plaintiff excepts.

Covington, Kilpatrick, Storey & Fredericks, Carl Fredericks, Rome, for plaintiff in error.

Mattews, Maddox, Walton & Smith, John W. Maddox, Rome, for defendant in error.

EBERHARDT, Judge.

1-2. Headnote 1, dealing with the general grounds, and Headnote 2, concerning special ground 4, need no elaboration.

3. Plaintiff served defendant with interrogatories under Code Ann. § 38-2109(b) seeking certain information and the discovery of written statements which the defendant may have obtained from members of the train crew who were on the train involved in the collision. Defendant filed objections to the interrogatories, which were overruled after a hearing. However, the time for producing the statements, etc. for inspecting and copying was extended by the court until the day before trial and error is assigned in the amended motion for new trial upon this granting of the delay.

The rulings upon the objections to the interrogatories and the order extending time for making answer or for producing statements, etc., for inspection and copying are rulings of an interlocutory nature, made antecedent to the trial, somewhat in the nature of rulings on special demurrers, pleas in bar or abatement, the allowing or disallowing of an amendment, etc., which are not reviewable in a motion for a new trial. Callaway v. Hopkinsville Milling Co., 43 Ga.App. 81(1), 157 S.E. 900. If error is to be assigned on these rulings it should be done directly in the bill of exceptions.

4. In the selection of the jurors one of them answered on the voir dire that he was of the opinion that a train had the right of way over vehicular traffic on a public road at a crossing. Plaintiff moved the court to exclude the juror for cause on the ground that he had formed an erroneous opinion of the law as it affected matters ultimately to be passed upon by the jury trying the case. The motion was denied and plaintiff excepts.

(a) It did not appear that the juror had a firm or fixed opinion which he was unwilling to yield to the appropriate instruction of the court concerning the law. He was sworn to render a verdict, without favor of affection to either party, based upon the opinion that he entertained of the evidence and according to the law as given in charge. Code § 59-706. No disqualification appears.

(b) Moreover, it appears from this ground of the motion that plaintiff struck the juror preemptorily. He was not upon the panel accepted to try the case and render a verdict. Plaintiff urges that the refusal of the court to excuse the juror for cause made it necessary for him to use one of his six strikes in removing the juror from the panel, but nothing appears to demonstrate that this resulted in leaving on the jury any individual who was not impartial or for any reason not qualified. Instead, it would seem that plaintiff by use of the voir dire was able to use his strike to remove a juror whom, though not unqualified, he preferred not to have on the jury. The function of the voir dire was served. No harm appears.

5. Error is assigned upon the court's excusing of a juror who, upon voir dire, stated that he was of the opinion that a railroad should have a signal light or some sort of warning at all crossings so that approaching traffic might be apprised of the presence of a train at or near the crossing. Another juror was substituted on the panel.

While this action on the part of the court was inconsistent with the ruling which it had just made (for it can equally be said that this juror was qualified), again no harm appears. A party to a lawsuit has no vested interest in having any particular juror to serve; he is entitled only to a legal and impartial jury. The erroneous allowing of a challenge for cause affords no ground of complaint if a competent and unbiased jury is finally selected. Burt v. Panjaud, 99 U.S. 180, 25 L.Ed. 451; Northern Pac. R. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755. And see 31 Am.Jur., Jury, § 152.

6. Photographs of the crossing and its immediate environs made six days after the accident were admitted over objection that they were made during the daylight hours of the day while the accident had occurred just prior to midnight and that they did not truly and correctly portray the situation as it appeared at the time of the accident. The photographer who made them testified that except for the daylight-dark situations the conditions existing at the crossing and in the environs shown in the pictures were substantially the same as at the time of the accident. He had seen the crossing on the morning immediately following the accident. The admission or exclusion of photographs, even when there is admittedly some difference in the situation portrayed and that which existed, is a matter within the discretion of the trial judge and will not be controlled unless abused. McKinney v. Pitts, 109 Ga.App. 866(4), 137 S.E.2d 571. And see Toler v. State, 213 Ga. 12(2), 96 S.E.2d 593; City of Thomasville v. Crowell, 22 Ga.App. 383(4), 96 S.E. 335. The pictures here should bear a closer relation to the true situation at the time of the accident than was the case in Coffee County v. Denton, 64 Ga.App. 368, 372, 13 S.E.2d 209, where they were made nearly three years after the time of the accident--and were admitted. And see Georgia Power...