Syllabus by the Court.
Where a
person hires his servant to another for a particular
employment, the servant, as to anything done in that
particular employment, must be considered the servant of the
person to whom he is hired, although he remains the general
servant of the person hiring him to the other.
While
it is true that the testimony of a party who offers himself
as a witness in his own behalf is to be construed most
strongly against him when it is self-contradictory, vague, or
equivocal, the same rule is not applicable against a party in
the construction of the testimony of other witnesses
introduced by him.
"When
a witness testifies to facts incoherently or inconsistently
that circumstance goes to his credit, and if his testimony be
very incoherent or inconsistent, it should be considered with
great caution" by the jury (Evans v. Lipscomb,
31 Ga. 71 (2); but this rule does not authorize the court to
hold as a matter of law that the testimony of one not a party
has no probative value merely because it is incoherent
inconsistent, or self-contradictory.
It is
"well settled in this state that a party may contradict
his own witness by showing the truth to be different from
what the witness testified." Skipper v. State,
59 Ga. 63; Cronan v. Roberts, 65 Ga. 678; McElmurray
v. Turner, 86 Ga. 217." Christian v. Macon Railway
Co., 120 Ga. 314 (2), 317, 47 S.E. 923, 924. "A
jury, in arriving at a conclusion upon disputed issues of
fact, may believe a part of the testimony of a witness or
witnesses, and reject another part thereof; it being their
duty to ascertain the truth of the case from the opinion they
entertain of all the evidence submitted for their
consideration." Sappington v. Bell, 115 Ga
856(1), 42 S.E. 233.
Where a
witness testifies to a fact, the presumption is, in the
absence of anything to the contrary, that he is testifying
from his own knowledge.
Under
the above rulings the plaintiff's evidence made a case
for submission to the jury, and the court committed error in
awarding a nonsuit.
Error
from Superior Court, Coweta County; C. E. Roop, Judge.
Action
by T. M. Reaves against the Columbus Electric & Power
Company. Judgment of nonsuit, and plaintiff brings error.
Reversed.
This
was an action by T. M. Reaves against the Columbus Electric & Power Company to recover damages for personal injuries. The
case came to this court on exceptions to a nonsuit.
The
plaintiff alleged: That while riding in an automobile upon a
public highway he was injured in a collision between the
automobile and a wagon in the charge of the defendant's
servant; that the servant was driving a team of mules hitched
to one wagon, and behind that wagon another was attached by
means of a rope or chain; that the rear wagon was pulled
behind the front one at a distance of approximately 20 feet
that, because the rear wagon was loosely, carelessly, and
negligently hitched or tied to the front wagon, it failed to
track directly behind the front one, but swerved back and
forth, and that, as the vehicles were meeting, it swerved to
its left and far beyond the center of the highway against the
automobile in which the plaintiff was riding, causing the
automobile to turn over, with the result that the plaintiff
was injured. The principal question for determination by this
court is whether the evidence would have authorized the
inference that the driver of the team was the servant of the
defendant at the time and place of the injury. The only
evidence upon this question was the testimony of the driver
himself, and was as follows:
"My name is Horace Goodwin. I live out here at Mr
Hulette Potts in this county. On or about the 28th of last
October I remember the Columbus Electric
Power folks fixing its wires and I was hauling for the
Columbus Electric & Power Company, of Columbus. I was on the
wagon the night there was a lady got killed and three white
gentlemen got hurt. I was driving the front team. Two white
gentlemen were on the front wagon with me. * * * They were
tramps, two white tramps. * * * I answer I was going home to
Mr. Hulette Potts. I stays down here on his place about three
miles and a half I reckon from Newnan. There was nobody else
on the front wagon except me and these two white tramps. The
front wagon did not have any load except we three men, no
load at all. The body had a flat on it, nothing but a flat.
The coupling was not full length. There was nothing else on
the front wagon. It had a flat instead of a body on it. There
was a flat on the hind wagon too. There was nobody on it.
There was nothing but a flat on it. One of the men
tied the hind wagon to the front wagon; I don't know his
name. He was working for the power company, the man that tied
it. The man that tied this hind wagon onto the front wagon
was working for the power company. I don't know his name.
He is here. In reply to the question, 'The man that tied
this hind wagon onto the front wagon, was he the power
company's boss man that was bossing the work?' I
answer he was going with us to show us where to put the
wires. He showed them how to tie the wagon.
Q. Two of them who were working for the power company tied
the wagons together, tied the hind wagon to the front wagon?
A. Yes, sir. Both of them were white men, and both of them
were working for the Columbus Electric Power Company. In
reply to the question, 'Who was the man that directed you
or anybody else as to where to get the wire, where to put the
wire, and what to do with reference to fixing the wire for
the Electric Power Company?' I answer he was going with
us, I was hauling from Grantville some wire.
Q. Who was it told you where to get the wire and what to do
with the wire and how to fix it? A. Them power men.
Q. Two of them? A. Yes, sir.
Q. Were they or not the same two that tied the hind wagon to
the front one? A. It was one of those. Two of them were
there. I was there at the wagon.
Q. Now tell what these two men or either one of them said
about tieing the wagon behind to the front wagon? A. He
showed how to tie it, and after he got it tied he told me I
could go home. After he tied them he told me I could go home
with them, and I left to go home. Didn't anybody tell me
to the way I went. In reply to the question, 'After these
men tied that wagon onto the front wagon, where did they tell
you to go, how come you to go?' I answer they told me to
carry the wagons in to Mr. Hulette Potts, and I was trying to
do what these men told me to do at the time this accident
happened. These two men that tied the hind wagon to the front
wagon were the ones who ordered me what to do about the wire,
where to get the wire and where to put it with reference to
doing this work for the power company. I obeyed their orders.
I did everything that these two power company men instructed
me to do.
Q. Going as you did up the road at the time of the accident
were you or not obeying their instructions at the time? A.
Yes, sir.
Q. How many people work there for the power company? A. I had
two, with each wagon, run two wagons. I had four men. The
other two men were along on the other wagon, the one I
brought home. The other wagon left and left us there pretty
late.
Q. Left you there with the two power company men? A. Yes sir.
Q. Then you had to do what these two power company men told
you? A. Yes, sir. These power company men had me to haul wire
from Grantville to Hogansville for the power company.
Q. What did they do with it? A. I don't know, sir.
Q. Strung it on the poles? A. Yes, sir. In reply to the
question as to who directed my movements and told me what I
had to do, I answer the fellow that was with me, the power
company man. Every time we would go he would go with us and
show us where to get the wire and where to put it. When I was
going up the road with those two wagons, the lights of the
automobile that collided with us were burning."
Cross-Examination.
"Mr. Hulette Potts hired me and he paid me. He had the
right and only he had the right to discharge me. No man
connected with the power company hired me. Mr. Hulette Potts
had me hired. No man connected with the power company paid
me. No man connected with the power company had the right to
discharge me. I was working for Mr. Potts in hauling the wire
for the power company. The power company only directed me
where to place the wire, and they had nothing to do with my
movements after I left after hauling wire, and I went
wherever Mr. Potts told me after the hauling and carried the
teams to whatever place he told me.
Q. So that after you quit hauling wire for the power company,
after you quit in the evening you were under the instructions
of Mr. Potts and did what he said? A. Yes, sir.
Q. And you obeyed his orders exclusively? A. Yes, sir. In
reply to the question as to what right the power company had
to take me off as driver and put somebody else on Mr.
Potts' wagon as driver, I answer it didn't have any
right. It was on Saturday evening that the accident occurred.
One of Mr. Hulette Potts' mules got hurt down there on
the other side of Grantville, and after the mule got hurt
word was sent to Mr. Potts about it, and he came down there.
Q. And he instructed you to take those mules and carry them
home? A. Yes, sir; that other boy he would carry the mules
home, the one that got hurt, and he told me to take the other
team and carry it home and tie the wagons together. I went on
a little late that night. I hauled for the power company
until night. It wasn't quite night; it wasn't dark
when we got to
Grantville; the sun was about a quarter of an hour high. In
reply to the question as to where I was working for the power
company, I answer we
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