Savannah v. Wideman

• Decision Date: 13 July 1896
• Parties: SAVANNAH, F. & W. RY. CO. v. WIDEMAN.
• Court: Georgia Supreme Court

99 Ga. 245

25 S.E. 400

SAVANNAH, F. & W. RY. CO.

v.WIDEMAN.

Supreme Court of Georgia.

July 13, 1896.

Parol Evidence—Railroads—Duty to Avoid Killing Stock—Measure of Care—Witness— IMPEACHMENT—Weight of Evidence—Appeal —Waiver of Error.

1. Where the only objection to the admissibility in evidence of a written contract between the plaintiff and the defendant was, in effect, that, under the limitation as to time therein expressed, it had expired, and was no longer operative as to the matter in controversy between the parties, and the defendant, in whose behalf it was tendered in evidence, offered to prove "that the terms of the contract had been extended by parol" so as to cover and embrace that matter, this objection should not have been sustained without allowing the defendant an opportunity to show that the contract had in fact been so extended, no question under the statute of frauds being involved.

2. It was error, upon the trial of an action against a railroad company for the killing of live stock, to charge, "'Whether the railroad company did use reasonable care, or ordinary care and diligence, and every effort, to prevent [killing the stock], is a question for the jury to determine from the evidence." Requiring the company to use "every effort" to prevent killing the stock was imposing upon it a rule of diligence more stringent than the law exacts. Railway Co. v. Daniel, 18 S. E. 22, 91 Ga. 768; Railway Co. v. Miller, 22 S. E. 660, 95 Ga. 738.

3. A witness can neither be impeached nor sustained, as to credibility, by allowing another witness to testify as to his individual opinion upon this question.

4. In determining upon which side of a disputed issue the evidence preponderates, the credibility, and not the number, of the witnesses introduced pro and con is the proper test. Corniff v. Cook, 22 S. E. 47, 95 Ga. 61, and cases cited.

5. Assignments of error not argued nor insisted upon in this court will not be passed upon. Parker v. Lanier, 8 S. E. 57, 82 Ga. 219; Brown v. State, 7 S. E. 915, 82 Ga. 224.

(Syllabus by the Court.)

Error from superior court, Clinch county; J. M. Griggs, Judge.

Action by J. H. Wideman against the Savannah, Florida & Western Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

The following is the official report:

Wideman sued the railway company for damages resulting to him by the killing of five mules on November 13, 1894, by the running of a freight train. He obtained a verdict, and the company's motion for a new trial was overruled. The motion contains the following special grounds: Error In refusing to admit in evidence a contract between plaintiff and defendant for the supplying of cross-ties to defendant from April to October, 1893, in which plaintiff released defendant from all responsibility in damages to his stock during the time he was employed and working under this contract. The objection was that the contract showed on its...