Savannah Electric Co v. Crawford

• Decision Date: 27 March 1908
• Parties: SAVANNAH ELECTRIC CO. v. CRAWFORD.
• Court: Georgia Supreme Court

60 S.E. 1056

130 Ga. 421

SAVANNAH ELECTRIC CO.

v.CRAWFORD.

Supreme Court of Georgia.

March 27, 1908.

1. Writ of Error—Review—Failure to Present Questions Below — Instructions — Requests.

In an action to recover damages done to an automobile while passing along a public street by being struck by the car of an electric railway company, where the law upon the question of negligence, both as it affected the plaintiff's right to recover and the right of the defendant to have a verdict rendered in its favor, was substantially and fairly submitted to the jury, and the law in respect to contributory (or comparative) negligence and the reduction or mitigation of damages was not, under the contentions of the parties, directly involved in the case, this court will not reverse the judgment of the trial court overruling the motion for a new trial, because the presiding judge failed to charge the law applicable to such contributory (or comparative) negligence, when there was no request to charge on that subject.

2. Same.

Nor, under the facts of the case, was it error requiring a reversal that the court charged that, if the jury found that the plaintiff was entitled to recover, he would be entitled to recover such amount as the jury should determine was •reasonable and necessarily incurred as expenses as the direct and proximate result of the collision.

3. Evidence—Best Evidence.

If it was desired to discredit the evidence of a witness for the defendant by showing that his testimony delivered on the stand was not in accord with a written report which had been made by him to the defendant, and which he stated, on cross-examination, he had used to refresh his memory, the report itself was the best evidence of its contents; and it was erroneous to allow counsel for the plaintiff to inquire of the witness if he had made a report to the company which contained any such statement as that to which he was then testifying, and to elicit from the witness an answer that he did not "exactly state that in the accident report."

4. Writ of Error — Review—Harmless Error—Admission of Evidence.

But where, on redirect examination, the written report was handed to the witness, and, after an examination of it, evidence was elicited from him by counsel for the defendant without objection, which showed the contents of the report on the subject under inquiry, and which was not materially different from that which had been brought out on cross-examination, the allowance of the question and answer on cross-examination will not require a reversal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4171-4177.]

(Syllabus by the Court.)

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Action by W. B. Crawford against the Savannah Electric Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Crawford brought suit against the Savannah Electric Railway Company to recover damages on account of an alleged injury to his person and damage to his automobile, resulting from being struck by a street car of the defendant. He afterwards abandoned the claim to recover on account of any injury to his person. He alleged that he wasin the exercise of all ordinary care and diligence, and in no wise contributed to the collision, which was due solely to the negligence and carelessness of the company, its servants and agents, in certain named particulars. The defendant denied all of the allegations of the petition, except that it was a corporation under the laws of this state, with an agency in the city of Savannah, and that it operated and maintained a system of electric railway as alleged by the plaintiff. It is also alleged that, "if the plaintiff or his property suffered any damage at all, it was due to his own negligence and want of care, and not to any negligence and want of care upon the part of this defendant." The evidence for the plaintiff tended to show that on a rainy day he was passing along a public street in an automobile, with the curtains up; that for some distance the machine was on the street car track; that finally he turned to go to the place where he intended to stop; that, before crossing the track entirely, one of the defendant's cars, approaching from behind, struck the rear wheel of the automobile, injuring it and putting the plaintiff to considerable necessary expense for repairs and for the hire of another machine, which it was necessary for him to use until the first could be put in order; that the machine could have been seen by the defendant's employe on the car for a long distance before it was struck; and that the car was run at a high rate of speed, in excess of that allowed by the municipal ordinance, and without giving any signal or warning of its approach. The evidence for the defendant tended to show that the car was running slowly, within the speed limit permitted by the ordinance; that the bell was rung continuously for some distance; that the plaintiff's automobile was being driven, not on the track, but alongside it; that the collision was caused by the machine being turned across the track in front of the car when the latter was very near at hand; that there was no negligence on the part of the defendant's employes, who were unable to stop the car before it struck the automobile. There was no conflict in the evidence as to the expenditure rendered necessary by the plaintiff. The jury found that amount in his favor. A motion for a new trial was made on the grounds, among others, that the verdict was contrary to the evidence; that the court charged that, "if you find the plaintiff is entitled to recover, he would be entitled to recover such an amount as you find was reasonably and necessarily incurred as the direct and proximate result of the collision"; that he failed to charge the law in regard to the apportionment of damages if both parties were at fault; and because the court allowed counsel for the plaintiff to ask a witness the following question: "Does that report [referring to a written instrument] state that the gong was rung for 4 or 4 1/2 minutes?" To this the witness answered: "No, sir; I didn't exactly state that in the accident report." The witness under examination was the conductor of the defendant's car. On cross-examination he stated that he had made out an accident report for the company, that counsel for the defendant had given him the report to read, and he had refreshed his memory from it. The question and answer above stated were then allowed. On redirect examination the report was handed to him, and, after looking at it, he said: "I see the language I put...