Richmond & D. R. Co v. Mitchell

• Decision Date: 26 November 1894
• Citation: 22 S.E. 124,95 Ga. 78
• Court: Georgia Supreme Court
• Parties: RICHMOND & D. R. CO. v. MITCHELL.

22 S.E. 124

95 Ga. 78

RICHMOND & D. R. CO.

v.MITCHELL.

Supreme Court of Georgia.

Nov. 26, 1894.

Attachment?/span>Demurrer?/span>Time or Interposing —Remarks of Counsel?/span>Injury to Employe Defective Railroad Track.

1. While, under section 3310 of the Code, the defendant in an attachment case may appear and defend at any tirre before final judgment, all defenses must be submitted and disposed of in their proper order; and consequently such defendant cannot, after pleading to the merits, and a term has passed, interpose and have adjudicated special demurrers to the plaintiff's declaration, relating only to matters of form, and not vital to the plaintiff's cause of action.

2. The improper language used by counsel for the plaintiff in their arguments to the jury was not, in view of the rebuke administered by the presiding judge, and the instructions given by him to the jury with respect thereto, of such character as to authorize the declaring of a mistrial, or the granting of a new trial. Its injurious effect, if any, was doubtless counteracted by the action taken by the judge.

3. The plaintiff, an employe of a railroad company, having been injured by a locomotive of the defendant in the state of Alabama, and the employer being, under the law of that state, liable to answer in damages for personal injuries received by an employe in the service or business of the employer, when such injuries are "caused by reason of any defect in the condition of the ways, works, machinery or plant connected with, or used in, the business of the * * * employer, " and there being evidence introduced by the defendant from which, in connection with evidence introduced by the plaintiff, the jury could reasonably infer that the track of the defendant, at the place where the plaintiff was injured, was full of coal and coke, in most places as high as the rails, and in some places higher, and was "dangerous for men to switch around at night"; that the track had been in this condition for some time; and that the injuries complained of were attributable to these obstructions on the track, —a verdict in the plaintiff's favor was not unwarranted.

4. No error requiring the granting of a new trial was committed, either in admitting or rejecting evidence, or in the charges complained of: the requests to charge, so far as legal and pertinent, were sufficiently covered by the general charge; the verdict was not excessive; and, on the whole, there was no abuse of discretion in refusing a new trial, especially as this is the second verdict in the plaintiff's favor which has had the approval of the trial judge.

(Syllabus by the Court.)

Error from city court of Atlanta; T. P. Westmoreland, Judge.

Action by W. J. Mitchell against the Richmond & Danville Railroad Company, lessee. Plaintiff had judgment, and defendant brings error. Affirmed.

The following is the official report:

In opening argument, Mr. Slaton. of counsel for the plaintiff, referred to statements inevidence of Regan, Shaffer, Bond, and Hardee, and used substantially the following language in reference thereto: "Such statements are not worthy of credit. They are made by men in the employment of defendant, and were doubtless extorted from them by fear of losing their jobs." Defendant's counsel arose, and reserved an exception to this language, on the ground that there was no evidence to justify such aspersions upon the person making such statements, or upon the defendant, and that the counsel had gone outside of the record, in a manner calculated to inflame the jury, and thereupon moved the court to declare a mistrial on account of such improper statement. The court reproved plaintiff's counsel, who withdrew and retracted the remark. The court also stated to the jury that the remark was improper, and that they must not consider the same, and withdrew from them, as far as it was possible for the court to withdraw it, the effect of such statement. Counsel for the defendant renewed his motion to declare a mistrial, on the ground that such language was uncalled for and unpardonable, and that it was impossible for the court, by a formal withdrawal of such remark from the jury, or caution to them not to be influenced thereby, or for the counsel, by a formal retraction of such language, to avoid the natural prejudice which would be excited in the mind of the jury. The motion was overruled. Mr. Glenn, of plaintiff's counsel, in his closing argument to the jury, in commenting upon the "contract" by which plaintiff had agreed with defendant not to go in between cars for the purpose of coupling or uncoupling without a stick, which contract is in evidence, stated to the jury that the supreme court had passed upon that contract, that the case had been to the supreme court, and that the jury in the former trial of the case must have given plaintiff a verdict. Defendant's counsel arose, and reserved an exception and objection to this language, and to his allusion to the fact that the former jury had given plaintiff a verdict. The court instructed the jury to withdraw, and defendant's counsel urged the motion to declare a mistrial, on the ground that it was the second instance in the trial where counsel had gone out of the record, and had commented in an improper manner upon facts not properly before the jury. Plaintiff's counsel withdrew the remark, and the court instructed the jury that they were not concerned at all with what any former jury had done in the case, and must not be influenced by allusions to what such jury had done or had not done. Thereupon defendant's counsel insisted upon a mistrial, on the ground that it was impossible for the court, by withdrawing such language from the jury, and by instructing them not to be influenced thereby, to relieve defendant of the effect produced by such statement, and that it was impossible for counsel, by a withdrawal of such language, or by any such disclaimer, to re lieve defendant of the prejudice naturally to be excited in the mind of the jury by reference to a former verdict in the same case. The court refused the mistrial.

Jackson & Leftwich, for plaintiff in error.

Glenn & Slaton, for defendant in error.

LUMPKIN, J. 1. Section 4191 of the Code provides that all demurrers to bills in equity (now called "equitable petitions") must be made at the first term; and rule 28 of the superior court provides that "all matters appearing on the face of the declaration or process, that would not be good in arrest of judgment, shall be taken advantage of at the first term, and be immediately determined by the court." New Rules of Court (1893) p. 13; Code, p. 1349. This rule is, of course, applicable to actions at...