Southern Ry. Co. v. Wright
| Decision Date | 18 May 1909 |
| Docket Number | 1,531. |
| Citation | 64 S.E. 703,6 Ga.App. 172 |
| Parties | SOUTHERN RY. CO. v. WRIGHT. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The verdict was authorized by the evidence, and the recovery cannot be set aside upon the ground that it was excessive inasmuch as no showing is made that the finding was induced by prejudice or bias or by corrupt means.
[Ed Note.-For other cases, see Carriers, Dec. Dig. § 318; [*] New Trial, Cent. Dig. §§ 153-156; Dec. Dig. § 76. [*]]
It is the duty of the trial judge, even without request, to check improper remarks to the jury or improper conduct on the part of any person or persons in the presence of the jury, and to seek, by proper instruction to the jury, to remove any prejudicial effect that improper remarks or improper conduct may have been calculated to have against the opposite party but a verdict will not be set aside because of such remarks or because of any omission of the judge to perform his duty in the matter, unless timely objection be made at the trial. In such case silence will be construed as a waiver of the right to object, or as an admission that the apparently prejudicial circumstance was in fact harmless.
[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. § 1500; Dec. Dig. § 207. [*]]
An assignment of error based upon the refusal of the trial judge to permit a question to be answered presents no ground for review, unless the answer sought to be elicited is stated to him at the time of the ruling complained of.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1282; Dec. Dig. § 205. [*]]
A ground of a motion for new trial, complaining of admission or rejection of evidence, should be complete in itself or in connection with the exhibits attached to the motion, and should not require reference to be made to other parts of the record to render it intelligible. "A mere statement in a brief of evidence that the plaintiff 'introduced in evidence the mortality and annuity tables in the seventieth Georgia Report' does not authorize this court to take judicial cognizance of the contents of the tables published by the official reporter as an appendix to that volume." W. & A. R. R. Co. v. Hyer, 113 Ga. 776, 39 S.E. 447.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1747; Dec. Dig. § 302. [*]]
It is the duty of the court to inform the jury as to the issues submitted by the pleadings, and this may be done by stating the contentions of both parties as they appear in the pleadings, which the jury will have with them in the jury room. And, if any issue has by any means been eliminated, it is the duty of the judge to so inform the jury. The attention of the jury may be called to the abandonment of an issue stated in the pleadings by first stating the original contentions, and then informing the jury as to what has been abandoned. And where counsel in open court calls the attention of the court to the fact that his client has abandoned one of the contentions raised by the pleadings, and the court acquiesces, the fact that the court may previously have stated that the abandoned contention appears in the original pleadings, does not prejudice the cause of the defendant, but rather tends to accentuate the plaintiff's abandonment of his position.
[Ed. Note.-For other cases, see Trial, Cent. Dig. § 478; Dec. Dig. § 203; [*] Appeal and Error, Cent. Dig. § 4134; Dec. Dig. § 1046. [*]]
The duty of extraordinary diligence for the safety of passengers, devolving upon a carrier, continues until the passenger has safely alighted from the train, and it is not error to so instruct the jury. Whether extraordinary diligence requires that a passenger be assisted in alighting is dependent upon the circumstances and conditions surrounding the passenger, and the facts of the particular case. If, in the exercise of extraordinary care, it should become necessary for the safety of a particular passenger in an emergency that the passenger be assisted to alight, it would then become the duty of the carrier to assist the passenger.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 992, 1232; Dec. Dig. §§ 247, 303. [*]]
In the absence of a timely request, it is not necessarily reversible error for the trial court to omit to charge upon the burden of proof. In a case where complaint is made that no instructions are given as to the burden of proof, the general rule that he who assigns error must show not only error, but that the error was hurtful to him, should be applied.
In determining whether a plaintiff is entitled to recover for future pain and suffering and the amount of such recovery, it is proper for the jury to ascertain from the evidence whether the injury which occasioned the suffering is permanent or merely temporary.
Error from City Court of Polk County; F. A. Irwin, Judge.
Action by Dora Wright against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Trawick & Ault, J. L. Tison, and Maddox, McCamy & Shumate, for plaintiff in error.
J. M. McBride, U. G. Brock, and G. R. Hutchens, for defendant in error.
Mrs. Dora Wright brought suit against the Southern Railway Company for $10,000 damages on account of injuries alleged to have been occasioned by the act of an agent or employé of the defendant company in jerking her from one of its passenger trains. The original petition contained also an allegation that the plaintiff's fall (which was the cause of her injury) was caused by the fact that the stool which was placed at the foot of the car steps to aid passengers in alighting was placed upon rough and uneven ground, but this allegation of negligence was abandoned upon the trial. The jury rendered a verdict for the plaintiff for $3,500; and the defendant excepts to the judgment overruling its motion for new trial.
1. But little need be said as to the usual general grounds, that the verdict is contrary to the evidence, etc. The evidence in behalf of the plaintiff authorized the jury to find that an employé of the company in charge of the train and wearing its uniform (perhaps thinking that Mrs. Wright was not leaving the train as expeditiously as was necessary) seized her by the arm and jerked her from the second step of the passenger coach, whence she fell at full length upon the ground, and that after her fall he made no effort whatever to assist her to arise; that she was seriously hurt, and, as a result of her injuries, has suffered and will permanently suffer great physical pain from retroversion of the womb and serious internal complaints consequent thereupon. The plaintiff's evidence as to the cause of the injury was disputed; and evidence was also introduced to show that her present condition was perhaps due to other causes than the fall which she received. The issue of fact thus raised, however, was for the determination of the jury. It is insisted in the first ground of the amendment to the motion for new trial that the verdict is excessive. As we have already decided in Murphey v. Meacham, 1 Ga.App. 155, 57 S.E. 1046, and in Merchants' & Miners' Trans. Co. v. Corcoran, 4 Ga.App. 654, 62 S. B. 130 (7), the verdict of a jury cannot be held to be excessive unless it be manifestly the result of prejudice or bias, or corrupt motive.
2. In the fourth ground of the potion for new trial it is insisted that a new trial should be granted because of the misconduct of the plaintiff's attorney while addressing the jury in saying: It is insisted that this language was not authorized by anything in the testimony, that it was a gross violation of the rules of practice, and tended to prejudice the jury against the witness McCurdy and his testimony. Section 4419 of the Civil Code of 1895 declares: "Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the same, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if plaintiff's attorney is the offender." This court, while standing for the allowance of the utmost latitude to counsel in proper argument, stands also for the strict enforcement of the above-quoted section of the Code. But it must be borne in mind that, while the duty of the judge is prescribed in the first portion of this Code section, affirmative action on his part is invoked only "on objection made." If improper argument is being indulged, and no objection is made by the opposing party, it may be presumed that such argument is at least not considered hurtful. Indeed, we have seen many instances in which severe and unwarranted criticism of a party or a witness has reacted against the critic. In our view of the case, as no objection was made in the lower court, the exception to the alleged improper remark of counsel cannot be considered. Metropolitan Street R. Co v. Johnson, 90 Ga. 500, 16 S.E. 49. In that case (page 505 of 90 Ga., page 51 of 16 S.E. ) it was ruled that "although it is the duty of the trial judge, whether so requested or not, to check improper remarks to the jury, and to seek, by proper instructions to the jury, to remove any prejudicial effect they may have as to the opposite party, a verdict will not be set aside because of such remarks or because of any omission of the judge to perform his duty in...
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