Henderson v. Cent. R.R.

• Decision Date: 30 September 1884
• Citation: Henderson v. Cent. R.R., 73 Ga. 718 (Ga. 1884)
• Parties: Henderson. vs. Central Railroad.
• Court: Georgia Supreme Court

73 Ga. 718

Henderson. vs. Central Railroad.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Amendment. Evidence. Res Adjudicata. Non-suit. Before Judge Carswell. Screven Superior Court. May Term, 1884.

To the report contained in the decision, it is only necessary to add that the objection to the evidence in reference to the pass and the ruling of the court thereon are stated as follows in the bill of exceptions:

" During the progress of the cause, while the plaintiff was on the stand as a witness in his own behalf, defendant's counsel, on cross-examination, handed him a paper purporting to be a free pass on defendant's railroad, andasked him if his name did not thereon appear before the printed word, " agent, " as the person in whose behalf said ticket was issued. Plaintiff\'s counsel objected to said question, on the ground that the paper was the highest evidence of its contents; and that it was the defendant\'s duty, if it desired the contents of the paper to get before the jury, to offer the paper in evidence after plaintiff had closed his case. The court overruled the objection and permitted the witness to answer the question, the answer being that his name did so appear."

In the brief of evidence in the bill of exceptions, it appears that the plaintiff testified that he had a pass on which he was riding; that he wrote to the superintendent saying that, as the railroad used the platform of his store for freight, and he took care of freight and listed cotton shipped there, he thought he might have a pass, which was given. A pass issued to "W. M. Henderson, agent, " was shown him, and he stated that he thought that was the pass on which he was riding on the night of the injury. After the testimony closed, plaintiff's counsel moved to rule out what he stated as to the ticket, which was refused.

Black & Dell; Hook & Montgomery, for plaintiff in error.

A. R. Lawton; Henry Jackson, for defendant.

Blandford, Justice

The original declaration claimed damages from defendant by reason of having fallen in a well situated on the right of way of defendant, and which had been carelessly left open and unguarded. Plaintiff proposed to amend his declaration by alleging that the well was on the land of plaintiff, and that defendant entered on plaintiff's land without his knowledge or consent, and cut away the vegetable guards and protection around the well, etc. This is the only material amendment proposed. The courtrejected the amendment, and this is excepted to, and error is assigned thereon.

1.This amendment made a new cause of action, and was properly rejected for this reason; and even if this were not so, we do not think that the rejection of this amendment hurt the plaintiff in any way. The same case was made by the original declaration as would have been made by the amendment. The same testimony was admitted as would have been admissible if the amendment had been allowed. The amendment was wholly unnecessary and immaterial. No right was denied the plaintiff by the refusal of the amendment.

2.While the plaintiff was being examined in his own behalf, he was shown a ticket or free pass which purported to have been issued by the railroad company to...