Penn v. Ga.

• Decision Date: 03 February 1908
• Citation: 129 Ga. 856,60 S.E. 172
• Parties: PENN. v. GEORGIA, S. & F. RY. CO.
• Court: Georgia Supreme Court

60 S.E. 172

129 Ga. 856

PENN.

v.GEORGIA, S. & F. RY. CO.

Supreme Court of Georgia.

Feb. 3, 1908.

1. Trial—Reception of Evidence—Reopening Case for Further Evidence.

Generally where counsel for a plaintiff has announced the plaintiff's evidence closed, but has omitted to introduce evidence by reason of accident, inadvertence, or even because of a mistake as to the necessity for doing so in order to make out a prima facie case, on motion the presiding judge will allow the case to be reopened and additional evidence introduced, in order to prevent a nonsuit.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 159.]

2. Same—Discretion of Court.

This rule is not one of arbitrary right on the part of the plaintiff or his counsel. The judge has a discretion in the matter, under the facts of each case, especially after an announcement has been made that a nonsuit will be granted; and the exercise of such discretion will not be reversed, unless it has been abused.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 156, 160, 165.]

3. Same.

That the plaintiff's attorney has announced the evidence on behalf of the plaintiff closed, a motion for nonsuit has been made, and the judge has orally stated that he will grant it, but has not signed the order for that purpose, does not as matter of law make it too late to move that the case be reopened and additional evidence be allowed to be introduced.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 165.]

4. Same.

The evidence introduced before the announcement was made that the plaintiff closed did not make out a prima facie case.

(Syllabus by the Court.)

Error from Superior Court, Lowndes County; R., G. Mitchell, Judge.

Action by C. A. Penn against the Georgia, Southern & Florida Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Mrs. C. A. Penn brought suit against the Georgia Southern & Florida Railway Company, seeking to recover damages on account of the homicide of her husband. The petition contained three counts. In the first it was alleged that the plaintiff's husband was an employe of the defendant, and was engaged with other employes in removing its records from one place to another; that the records were loaded in a freight car which was pulled by a switch engine; that the plaintiff's husband was standing on the footboard of the engine next to the car, and was so known to be by the defendant's agents in charge of the train, and they consented thereto; that he was rightfully at that place; that defendant's employes in charge of the train attempted to make a "flying switch, " and in doing so caused a sudden and violent jerk, without any warning to the deceased or knowledge on his part; that he was exercising ordinary care, and was killed by the negligence of the defendant's other employes. The second count alleged that the plaintiff's husband was riding on the defendant's engine, in the discharge of his duties, when he was thrown from it by a sudden jerk and killed. The third count alleged that he was riding as a passenger on one of the defendant's trains, when he was thrown therefrom by a sudden and violent jerk, and was killed. It was sought to recover the full value of his life. On the trial the plaintiff introduced evidence to show that her husband was found beside the railroad track, with his arm crushed, his head cut, and suffering from internal injuries, from which he died shortly afterwards. The physician who attended him said: "His condition showed that he had been run over by the train or car." Evidence was also introduced tending to show the value of his services and his life expectancy. Upon the close of the plaintiff's evidence the defendant moved for a nonsuit. The judge announced that he would grant it. Before the order was signed, and after the announcement of the court, counsel for the plaintiff moved to be allowed to introduce an additional witness. To this the presiding judge replied: "I think it comes too late now." Counsel stated in his place that he had bona fide thought he had made out a case, that he had no thought of trifling in any degree with the court, and, as the court had held that his view of what was necessary to be introduced in order to make out a prima facie case was erroneous, he requested to be allowed to introduce an additional witness, whom he named. He also stated the facts which he expected to prove by the witness, to the effect that the plaintiff's husband was standing at the proper place for him to stand; that he was acting carefully and prudently, and wasfree from fault; that the defendant was at fauit; that while the plaintiff's husband was between the engine and the car the engine was suddenly cut loose, without warning; that it was done recklessly, suddenly, and wrongfully, and that as a result thereof he was killed; also, that the husband of the plaintiff was ordered by his superior officer to go with the train in question; that the running board or footboard on which he was standing was the proper place for him to stand, and that he was in the exercise of all care. The court again said: "I think it is too late; and I will sign the order." During this colloquy, and when counsel for plaintiff first asked to put the witness upon the stand, such witness was present in the courtroom, and was actually in the witness chair. The court signed the order granting the nonsuit, and the plaintiff excepted.

Burton Smith and Johnson & Little, for plaintiff in error.

John I. Hall, J. E. Hall, R. C. Jordan, and Cranford & Wilcox, for defendant in error.

LUMPKIN, J. (after stating the facts as above). After the evidence for the plaintiff had been introduced, and her counsel had announced her case closed, a motion was made for a nonsuit, and the court stated that he would grant it. Before the order was...