Southern Ry. Co v. Brock
| Decision Date | 13 May 1909 |
| Parties | SOUTHERN RY. CO. v. BROCK. |
| Court | Georgia Supreme Court |
Rehearing Denied June 29, 1909.
While the presiding judge would have been authorized to grant a continuance, it cannot be held that, under the showing and countershow-ing, he abused his discretion in refusing to do so.
Where a motion was made for a continuance on the ground of the illness of the mother of the leading counsel for the defendant, and was overruled on the showing and countershow-ing made, the production, on the hearing of a motion for a new trial, of the affidavits of such leading attorney and of another witness (no affidavits by them having been offered when the application for a continuance was made, and no reason being shown for the omission) will not require a reversal because of the overruling of the motion for a continuance.
[Ed. Note.—For other cases, see Continuance, Cent. Dig. § 128; Dec. Dig. § 44.*]
The allowance of the amendment to the petition did not furnish ground for a motion for a new trial, nor is a reversal required on any ground duly made and urged against the amendment.
There was no error in refusing to grant the second motion for a continuance, made after the allowance of the amendment to the petition.
The motion for a nonsuit was properly overruled.
Where a petition, in an action against a railroad company for a personal injury, alleged that at the point in the limits of an incorporated town where the injury occurred, and in the immediate vicinity, the defendant's tracks, roadbed, and right Of way were much traveled and frequented by the public, within its knowledge and that of its agents, an inquiry of a witness as to the extent to which those tracks and the spaces between them at that place were used by members of the public in walking, and the answer that they were used a great deal, and that almost everybody who came in from that side of the town used them, were not subject to the objection that the witness was asked to state a conclusion and not a fact.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471;* Witnesses, Cent. Dig. §§ 833, 988.]
Where a plaintiff had suffered the loss of both legs by reason of a personal injury on a railroad, and testified on the trial of a suit because of it that he could walk a little on his knees, and that he also used a rolling chair, there was no error in permitting him to walk before the jury and exhibit to them the loss of his limbs and the effect thereof oa his ability to walk.
[Ed Note.—For other cases, see Evidence, Cent. Dig. § 677; Dec. Dig. § 192.*]
Where various witnesses had been examined by both sides as to the extent of the use made by the public of railroad tracks and the intervening and surrounding spaces as a pass-way, a general motion "to rule out all the testimony that has been introduced by both sides in connection with people walking anywhere there except on that line, " without pointing out any particular evidence or the testimony of any particular witness as subject to objection in that "connection, " was too vague and uncertain, and there was no error in overruling it.
[Ed. Note.—For other cases, see Trial, Cent. Dig. § 246; Dec. Dig. § 95.*]
Where authorized by the pleadings and evidence, there was no error in charging that, if there was a failure to comply with the law with respect to keeping engines and cars under control and ringing the bell at public crossings, while such failure would not within itself amount to such negligence as to become the basis of a recovery, yet, if the plaintiff was injured within 400 yards of a public street crossing, the jury might consider such failure to check or give the statutory signal as a circumstance in connection with all the other evidence in the case in determining whether the defendant was negligent or not; the judge charging also correctly on the subject of negligence generally as applicable to the case-made.
(a) The pleadings and evidence in this case authorized such a charge.
[Ed. Note.—For other cases, see Trial, Cent. Dig. § 709; Dec. Dig. § 295.*]
The plaintiff, in a case involving permanent injury, having introduced in evidence the table of life expectancy contained in 70 6a. 844 et seq., but not the annuity table, a portion of the charge, when considered with the entire charge as to damages, did not furnish ground for a new trial as failing to instruct the jury how to use such tables, and therefore being calculated to mislead them to the prejudice of the defendant, which part of the charge was as follows:
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]
Some of the requests to charge were properly refused as not correctly stating principles of law applicable to the case. In so far as any of them embodied principles which were legal and pertinent, they were sufficiently covered by the general charge, so that the failure to give them did not require a new trial.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]
There was sufficient evidence to authorize a recovery by the plaintiff; and while the verdict was large, in view of all of the facts of the case, the extent of the injury, the absence of error in rulings of law, and the approval ofthe presiding judge, this court will not grant a new trial on that ground alone.
[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 1T8, 372-385, 1396; Dec. Dig. § 132.*]
(Syllabus by the Court.)
Error from Superior Court, Habersham County; J. J. Kimsey, Judge.
Action by G. T. M. Brock, by next friend, against the Southern Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.
McMillan & Erwin, C. R. Faulkner, A. G. McCurry, J. J. Strickland, and Julian Mc-Curry, for plaintiff in error.
Howard Thompson and R. R. Arnold, for defendant in error.
LUMPKIN, J. Brock, a minor about 18 years of age, brought suit against the Southern Railway Company and its engineer for damages resulting from being run over by an engine of the defendant company. His arm was broken and his legs crushed, rendering necessary the amputation of both legs below the knees. At the time of the injury he was walking on the track of the defendant company about 253 yards before reaching a public street crossing, and at a place which he alleged was in the limits of an incorporated town, and where the tracks, roadbed, and right of way were much traveled and frequented by the public as a passway, within the knowledge of the defendant company, its engineers, and other employes. It was alleged that the exercise of ordinary care would have charged the defendants with knowledge that the track was likely to be occupied by pedestrians at that point, and also that the track was straight for three-quarters of a mile before reaching such point, and that the engineer either did see the plaintiff, or ought to have seen him, and could have prevented the injury by the use of ordinary care. There were allegations of failure to comply with an ordinance limiting the speed to six miles per hour, or to keep a proper lookout, or to give any signal of approach, or to check the engine, or to comply with the law in reference to approaching public crossings. The plaintiff also alleged that there was a freight train on a side track of the defendant company, running alongside the track on which he was, which freight train was making so much noise as to prevent his hearing the approaching engine and to attract his attention temporarily. He further alleged that the engine which injured him was being run at a high and dangerous rate of speed, and that the defendants were guilty of other acts of negligence. The defendants denied the substantial allegations. It is unnecessary to set out the evidence. On the trial the jury found in favor of the plaintiff against the defendant company, $20,000 damages. The company moved for a new trial, which was denied, and it excepted.
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...be construed to sustain, rather than to destroy, the verdict, for every presumption and inference is in its favor. Southern R. Co. v. Brock, 132 Ga. 858, 862, 64 S.E. 1083; Y.M.C.A. v. Bailey, 112 Ga.App. 684, 690, 146 S.E.2d 324; Dodd v. Newton, 122 Ga.App. 720(2), 178 S.E.2d Mrs. Maloy so......
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...for every presumption and inference is in favor of the verdict. Wren v. State, 57 Ga.App. 641, 644, 196 S.E. 146; Southern R. Co. v. Brock, 132 Ga. 858, 862, 64 S.E. 1083; Stapleton v. Amerson, 96 Ga.App. 471(5), 100 S.E.2d 628; Young Men's Christian Assn. v. Bailey, 112 Ga.App. 684, 690-69......
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