Price v. Whitley Const. Co., 35390
Citation | 91 Ga.App. 257,85 S.E.2d 528 |
Decision Date | 26 November 1954 |
Docket Number | No. 35390,No. 2,35390,2 |
Parties | PRICE v. WHITLEY CONSTRUCTION COMPANY et al |
Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
The evidence does not demand a larger verdict than $4,000, although it might authorize a larger verdict. The court approved the verdict, and this court is without authority of law to disturb it.
Mrs. W. P. Price (hereinafter called the plaintiff) filed suit in the Superior Court of DeKalb County in the amount of $100,000, for personal injuries and pain and suffering occasioned while riding in a trackless trolley, which was suddenly struck from behind by a cement truck operated by Merelee Mack, an agent of Whitley Construction Company, (which we shall call the defendant). The jury returned a verdict for $4,000. The plaintiff filed a motion for new trial on the usual 3 statutory grounds, and thereafter added a ground numbered 4, alleging that the verdict was grossly inadequate. Thereafter the motion as filed was amended by adding a ground numbered 5, likewise alleging that the verdict was grossly inadequate, and then a ground numbered 6, which alleged:
'Because the following material evidence offered by movant was illegally withheld by the court from the jury against the demands of movant, as follows: While plaintiff was on the witness stand testifying in her own behalf, her counsel, Mr. Wilbur B. Nall, asked the following questions and the following transpired:
'Movant avers as a part of this ground: (a) Movant offered the evidence while the plaintiff was on the stand testifying in her own behalf. (b) That the court ruled the evidence out and would not permit the same to be considered by the jury. (c) The evidence would have benefited movant, and its exclusion was hurtful and prejudicial to movant, for the reason that the doctor, Dr. Paul Reith, had testified in part as follows at the trial:
$A ground numbered 7 was also added as follows: 'Because the court erred in charging the jury as follows: 'I charge you, gentlemen of the jury, that where a party has evidence in his power and within his reach by which he may repel a claim or charge against him and omits to produce it, or having more certain and satisfactory evidence in his power, relies on that which is of a weaker and an inferior nature, a presumption arises that the charge or claim is well founded, but this presumption may be rebutted.'
'The giving of the charge complained of, so movant avers, created the impression with the jury, or was calculated to do so, that the court gave significance to the fact that the plaintiff's husband, though present in court and sent out of the court room when the rule for sequestration of witnesses was invoked and authorized it, the jury, to give weight to a presumption which, under the evidence and record in the case, did not, in fact or in law, exist.'
Further, the defendant denied all the material allegations of the petition. We will not here attempt to enumerate the evidence introduced at the trial, since it consists...
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