Hopkins v. Southern Ry. Co.
| Decision Date | 01 March 1900 |
| Parties | HOPKINS v. SOUTHERN RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Upon the hearing of a certiorari, the answer to the writ, when not excepted to or traversed, will alone be considered by the superior court, in ascertaining what occurred upon the trial in the court below.
2. Where the only evidence identified by the answer to the writ of certiorari as having been submitted to the jury upon the trial of an action brought in a city court by a husband against a railroad company for the killing of his wife clearly showed that the wife, by ordinary care, could have avoided the consequences to herself of the defendant's negligence, which was not wanton or criminal, and that her homicide was the result of her gross negligence, the railroad company was not liable; and there was no error in refusing to sustain the certiorari sued out by the plaintiff upon the ground that the verdict for the defendant was contrary to the evidence.
Error from superior court, Dekalb county; J. S. Candler, Judge.
Action by D. G. Hopkins against the Southern Railway Company. Verdict for defendant, and from an order overruling plaintiff's certiorari to the superior court be brings error. Affirmed.
Hunt & Golightly, for plaintiff in error.
Dorsey Brewster & Howell and Sanders McDaniel, for defendant in error.
1. The petition for certiorari complained of numerous errors which it alleged that the judge of the city court committed upon the trial of this case. In his answer to the writ of certiorari, the judge failed to specifically answer most of the allegations of the petition; and as the judge of the superior court could only consider the answer, it not being excepted to and not traversed, there were few points made for his decision. It is now a well-settled rule that upon the hearing of a certiorari the answer to the writ, when not excepted to or traversed, can only be looked to, in ascertaining what occurred upon the trial in the court below. Warren v. Wilson, 63 Ga. 372; Akridge v. Engine Co., 77 Ga. 50; Robinson v. Veal, 78 Ga. 301 (Syl., point 2); Gartrell v. Linn, 79 Ga. 700, 4 S.E. 918; Knowles v. Coachman (decided at the present term Ga.) 34 S.E. 607. As to the assignment of error upon the refusal of the judge to give in charge the written request as set out in the petition for certiorari, his answer fails to certify whether or not such charge was requested. The answer stated that certain requests to charge were made, some of which were given, and others not,--those refused being so marked, signed by the judge, and returned to plaintiff's counsel,--and whether the alleged request set out in the petition was refused or not could only be ascertained by examining the original, which was last in the hands of plaintiff's counsel. Manifestly, therefore, this assignment of error could not be considered by the judge of the superior court, as the allegations of fact upon which it was predicated were not verified by the answer. Nor was the judge of the superior court bound to consider the various assignments of error upon the different paragraphs of the judge's charge. The petition for certiorari alleged that the entire charge of the court was attached to it as an exhibit, and that it was divided into paragraphs, and then proceeded to quote from, and assign error upon, nearly all of such paragraphs. The answer admitted that a copy of the charge as given was attached to the petition, but failed to say whether or not the various alleged portions of the charge set out in the petition, and upon which error was assigned were or were not given, and left it to the judge of the superior court to compare the alleged parts of the charge set out in the petition with the copy of the charge attached thereto, in order to ascertain whether the paragraphs in the petition were correct. This was not a specific answer to the allegations of the petition, and we do not think that the judge of the...
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