Metropolitan St. R. Co. v. Johnson

• Decision Date: 24 October 1892
• Parties: METROPOLITAN ST. R. CO. v. JOHNSON.
• Court: Georgia Supreme Court

16 S.E. 49

90 Ga. 500

METROPOLITAN ST. R. CO. v. JOHNSON.

Supreme Court of Georgia

October 24, 1892

Syllabus by the Court.

1. Counsel for the plaintiff, in his opening address to the jury, may make a full statement of what he expects to prove although the plaintiff may be present in court, and afterwards be introduced as a witness in her own favor as to the matters stated.

2. Where, in an action for personal injuries, the declaration alleges that all of the plaintiff's injuries will continue for a long time, and prevent her having free use of her person; that the injuries to her side and arm are permanent; that she will not be able for a very long time, by reason of said injuries, to discharge her domestic duties and that her capacity to earn money has been destroyed for a long period of time, and permanently decreased one half,--it is not error to permit a witness to testify that the condition of the plaintiff, ten years hence, if it continues going on as it is, will be that of a confirmed invalid; the court instructing the jury that they cannot consider any permanent damage except to the arm and side, and that evidence as to the duration of other injuries can be considered only as showing that the injuries will extend for some time in the future.

3. A municipal ordinance may be proved by the production of the original book of ordinances, identified as such by the clerk of the corporation, and shown to have come from his custody. Notwithstanding the statute of September 19, 1891, (Acts 1890-91, p. 109,) makes an official certified copy evidence it is not the exclusive evidence.

4. Where the witnesses had been separated at the request of counsel, and one of them testified, and afterwards remained in the court room, and heard the testimony of other witnesses, it was not error for the court to allow him to be again introduced to testify in rebuttal; it was certainly no abuse of discretion. His having heard the testimony of other witnesses would go to his credit, but would not render him incompetent.

5. A specific charge, which is legal, and adjusted to a distinct matter in issue involving the right of the plaintiff to recover, and which may materially aid the jury, should be given as requested, although in principle and in more general and abstract terms it may be covered by other instructions given by the court. A request in this case to charge that "the precise thing which every person is bound to do before stepping upon a railroad track is that which every prudent man would do under like circumstances. If prudent men would look and listen, so must every one else, or take the consequences, so far as the consequences might have been avoided by that means,"--was legal, and applicable, and should have been complied with. The case being a close one, under the evidence, and its pressure being upon the matter as to which this charge was asked, the refusal of the request is ground for a new trial. Thompson v. Thompson, 3 S.E. 261, 77 Ga. 692, 697, (2.)

6. A new trial is not demanded because of the misconduct of counsel in his remarks to the jury, where it does not appear that any objection was made at the time, or that the court failed to require counsel to desist, and where, in his charge, the judge characterized the remarks as improper, and instructed the jury to disregard them. The proper method of taking advantage of any misconduct of counsel amounting to cause for a new trial is by prompt objection, and a request to withdraw the case from the jury. It is generally within the sound discretion of the court to grant this request, or, if the misconduct is not so gross as to require a mistrial, to forbid counsel to persist therein, and to instruct the jury not to allow the same to have any effect against the opposite party. If objection be made, and a continuance asked for and refused, the refusal would be subject-matter for review on a writ of error after the final termination of the case.

7. The reasonableness or unreasonableness of a city ordinance regulating the speed of a train upon a street is a question of law for the court to decide, and not for the jury, unless it depends, in the opinion of the court, on the existence of particular facts which are disputed. In this case it was error to charge that the reasonableness or unreasonableness of the ordinance was a question for the jury.

8. The instructions excepted to as to damages for pain and suffering caused by diminished capacity to labor were not error. Railroad Co. v. Jacobs, (Oct. Term, 1891,) 15 S.E. 825.

9. The instructions of the court in charging the jury were the same as those approved in Parker v. Railway Co., 10 S.E. 233, 83 Ga. 539.

Error from city court of Atlanta; HOWARD VAN EPPS, Judge.

Action by Angelina Johnson against the Metropolitan Street Railroad Company for personal injuries. Verdict for plaintiff. Defendant's motion for a new trial was overruled, and it brings error. Reversed.

N. J. & T. A. Hammond, for plaintiff in error.

Burton Smith, for defendant in error.

SIMMONS J.

The action was by Mrs. Johnson against the street railroad company for damages from personal injuries. She obtained a verdict for $1,800, and the defendant made a motion for a new trial, which was overruled, and it excepted.

1-4. The exceptions ruled upon in the 1st, 2d, 3d, and 4th headnotes do not require further discussion.

5. The injuries were caused by the plaintiff's being run into by an engine of the street railroad company while she was crossing its track in the city of Atlanta. According to her testimony, she had gotten off the car when it stopped opposite a tank, and had walked on beyond that point along Fair street, and upon the side-walk, which ran parallel to the track, a distance of nearly two blocks, before reaching the point at which she was injured. This point was at the intersection of Fair street and the Boulevard. She testified that when she had gone about half the distance between the tank and the corner of these streets she turned, and looked behind her, to see if the engine and car were coming, and upon reaching the corner, and as she left the sidewalk to go to the opposite side of Fair street, she again turned and looked, and, although she had a clear view, and could have seen the engine from that point to the tank and beyond, she did not see or hear it approaching; so continued on her way, going diagonally towards the track. She was not aware of the approach of the engine until it struck her. The track was in the middle of the street, and the width of the street from one sidewalk to the other was 40 feet. If we accept her account of the occurrence, the engine and car must have run nearly two blocks without her seeing or hearing it, while she was walking a distance of about 20 feet. There was evidence that from the point where she was hurt an engine on the track could be seen for a distance of about 300 or 350 yards. It was in the day time, about 11 or 12 o'clock. It does not appear that she was afflicted with any defect of sight or hearing, and her failure to see the engine if she looked could only be accounted for upon the supposition that it traveled the distance stated while she was walking from the sidewalk to the track. One of her witnesses testified that when he saw the engine it was running at the rate of about 10 miles an hour, but he does not say that this was its speed at the point where the plaintiff was struck. The rest of her witnesses who testified as to the speed stated that the engine was running a little faster than a mule could trot. The engineer testified that at first the engine was rolling down the hill towards the cross at from 10 to 12 miles an hour, but that about 50 or 60 yards before reaching the crossing he put on the brakes, and reduced the speed to...