Jones v. Western & A.R. Co.

• Decision Date: 13 May 1919
• Docket Number: 10110.
• Citation: 99 S.E. 388,23 Ga.App. 725
• Parties: JONES v. WESTERN & A. R. CO.
• Court: Georgia Court of Appeals

99 S.E. 388

23 Ga.App. 725

JONES v. WESTERN & A. R. CO.

No. 10110.

Court of Appeals of Georgia, Second Division

May 13, 1919

Syllabus by the Court.

There is no material error in any of the excerpts from the charge of the court complained of, when the entire charge is considered.

The sole negligent act of the defendant, according to the petition, was the sudden starting of its train just as the plaintiff entered. In the light of this allegation of the petition, and when the charge given by the court is considered, it was not error for the court to refuse a request to charge as follows: "If you find from the evidence that the defendant company failed to stop its train sufficiently long for the plaintiff to get aboard said train in safety, and she was injured as alleged she would be entitled to recover, whether the train was properly started or not, it being the duty imposed by law upon the company to stop its trains long enough for passengers to board them in safety, provided the plaintiff's injury was not the result of her own negligence." (Italics ours.)

Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial, assigning error upon the refusal of a written request to charge, must affirmatively show that the request was tendered to the judge before the jury retired to consider the case. The statement in such a ground that the request was "properly submitted" is a mere conclusion of the plaintiff in error and does not come up to the rule. Under this ruling the third and a portion of the fourth special ground of the motion for a new trial cannot be considered.

If the court erred in allowing H. E. Duckett, a witness for the defendant, to testify, after refreshing his memory from records not made by him, that he was the engineer of the train in question, this error was not harmful to the plaintiff, since the conductor of the same train testified without objection, after refreshing his memory from records made and kept by him, that Duckett, the witness just mentioned, was the engineer of the train; and the records showing the same fact were admitted in evidence without objection.

The testimony of the engineer: "If there had been an unusual jar or jerk, I would have remembered it," was admissible. It was not a mere conclusion of the witness, but was a statement of a positive fact, viz. that if there had been an unusual jar or jerk he would have remembered it....