Walker v. Central of Georgia Ry. Co.
| Decision Date | 05 April 1933 |
| Docket Number | 22620. |
| Citation | 170 S.E. 258,47 Ga.App. 240 |
| Parties | WALKER v. CENTRAL OF GEORGIA RY. CO. et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 27, 1933.
Syllabus by the Court.
Where plaintiff merely filed exceptions pendente lite to judgments sustaining demurrers of two joint defendants and dismissing case as to them and proceeded to trial against remaining defendant, plaintiff could not assign error on exceptions pendente lite in bill of exceptions to review judgment refusing motion to reconsider judgment nonsuiting plaintiff as to defendant and to reinstate case (Civ. Code 1910, § 6138).
Plaintiff could assign error on judgment sustaining demurrer to amendment in final bill of exceptions sued out to review judgment refusing to reconsider judgment of nonsuit and reinstate case without having excepted pendente lite to judgment sustaining demurrer, where bill of exceptions was sued out within sixty days from rendition of judgment on demurrer and within less than thirty days from adjournment of term at which judgment on demurrer was rendered (Civ. Code 1910, § 6152).
In action against railroad by peddler, injured when he stepped into hole in floor of freight car, where he went to inspect watermelons, evidence held for jury.
Amendment germane to original cause of action should be allowed although made after conclusion of evidence and pending consideration of motion for nonsuit (Civ. Code 1910, § 5681).
In action against railroad by peddler, for injuries received when he stepped into concealed hole in freight car, refusing amendment showing custom to allow buyers of melons, such as plaintiff, to enter freight car and showing railroad's negligence in failing to properly inspect freight car held error (Civ. Code 1910, § 5681).
Where nonsuit has been granted, losing party may either bring case directly to appellate court by writ of error, or, during term of court at which nonsuit was rendered, move to reinstate case and, from refusal of such motion, properly made, may take case up for review.
Where judgment of nonsuit is illegal for any reason, it is abuse of discretion for trial judge to refuse to set aside judgment and reinstate case on proper motion.
Where pending argument on motion for nonsuit, plaintiff tries to amend his petition and introduce additional evidence, and it affirmatively appears that allowance of amendment and introduction of additional evidence, in connection with evidence already in, would make prima facie case for plaintiff, refusal to allow amendment and admit additional evidence is error.
1. Where, in a joint action against three defendants, general demurrers of two of them are sustained and the case dismissed as to them, and no direct exception is taken thereto, but exceptions pendente lite are filed, and the plaintiff proceeds to trial against the remaining defendant and is nonsuited nearly a year after the rendition of the judgments sustaining the demurrers, and thereafter moves the court to reconsider the judgment of nonsuit and to reinstate the case and to the judgment of the court refusing this motion he sues out his final bill of exceptions to this court, he cannot properly therein assign error on his exceptions pendente lite. The judgments sustaining the demurrers of the two defendants and dismissing the case as to them being final and no direct exception being taken thereto, the joint status of the case ceased, and the bill of exceptions will be dismissed as to these two defendants.
2. In a final bill of exceptions sued out to review a judgment refusing to reconsider a judgment of nonsuit and to reinstate the case, a plaintiff may assign error on a judgment sustaining a demurrer, without having excepted pendente lite to the judgment sustaining the demurrer, where such final bill of exceptions is sued out within sixty days from the rendition of the judgment on the demurrer and within less than thirty days from the adjournment of the term of court at which the judgment on the demurrer was rendered.
3. Evidence tending to establish the allegations of the petition, which had been held not subject to general demurrer, was sufficient to make a prima facie case for submission to a jury, and it was erroneous to grant the defendant's motion for a nonsuit.
4. The right to amend is very broad, and the practice of allowing amendments is very liberal, and an amendment germane to the original cause of action should be allowed, although made after the conclusion of the evidence and pending the consideration of a motion to nonsuit.
5. Where a nonsuit has been granted, the losing party either may bring his case direct to the appellate court by writ of error, or, during the term of the court at which the judgment of nonsuit was rendered, may move to reinstate the case, and, from a refusal of that motion, properly made, may take the case up for review to the appellate court having jurisdiction thereof.
(a) Where the judgment of nonsuit is illegal for any reason, it is an abuse of discretion for the trial judge to refuse to set aside the judgment and reinstate the case, on proper motion.
6. Where pending argument on a motion to nonsuit, an effort is made by the plaintiff to amend his petition and introduce additional evidence, from which it affirmatively appears that the allowance of such amendment and the introduction of such additional evidence, in connection with the evidence already in, would make a prima facie case for the plaintiff, it is error for the trial judge to refuse to allow such amendment and admit such evidence.
7. The judgment refusing to set aside the judgment of nonsuit and reinstate the case was erroneous and is reversed, but, there being no proper exception to the judgments dismissing the case as to two of the defendants, the bill of exceptions is dismissed in so far as these defendants are concerned.
Error from City Court of Atlanta; Hugh M. Dorsey, Judge.
Suit by W. H. Walker against the Central of Georgia Railway Company, the Seaboard Air Line Railway Company, and the Georgia Southwestern & Gulf Railroad. Demurrers of the Seaboard Air Line Railway Company to the petition were sustained, and the case was dismissed as to it, and demurrers of the Georgia Southwestern & Gulf Railroad were sustained, and the case was dismissed as to it, the motion of Central of Georgia Railway for nonsuit was granted, plaintiff's motion to reinstate the case was refused, and plaintiff brings error.
Reversed as to the Central of Georgia Railway Company, and writ of error dismissed as to Seaboard Air Line Railway Company and the Georgia Southwestern & Gulf Railroad.
Ben C. Williford and Thos. L. Slappey, both of Atlanta, for plaintiff in error.
Little, Powell, Reid & Goldstein and Colquitt, Parker, Troutman & Arkwright, all of Atlanta, for defendants in error.
W. H Walker filed suit for damages against the Central of Georgia Railway Company, the Seaboard Air Line Railway Company, and the Georgia Southwestern & Gulf Railroad, the same growing out of personal injuries to himself alleged to have been caused by a latent defective condition in a freight car of the Seaboard Air Line Railway Company, which that company had delivered to the Georgia Southwestern & Gulf Railroad for the purpose of being loaded with freight on the line of that railroad and consigned to some point off its line. He alleged that said freight car was loaded with watermelons at Philema, Ga., on the line of the Georgia Southwestern & Gulf Railroad and shipped to a produce dealer in Atlanta; that the freight car moved over the line of that road to Albany, Ga., and from there to the point of destination over the line of the Central of Georgia Railway, where it was sold by the consignee to one Miller; that this railroad maintained in Atlanta what is known as "a team track yard," where it places cars of watermelons and other perishable products to be sold by the owners thereof out of the cars in which they are shipped; that it invites and allows the prospective buyers of such products to inspect them by going into the cars; that petitioner is a peddler and retail dealer in watermelons, and, desiring to purchase some melons from said Miller, went to said team track yard of the Central of Georgia Railway with his wagon; that it became necessary for petitioner, before purchasing the melons, to inspect them as to size and weight, and, as was customarily done, with the knowledge and consent of the Central of Georgia Railway, petitioner went into said freight car to inspect these watermelons before buying them; that while he was in the freight car his foot went into a hole in the floor thereof, which hole was covered with the straw used in packing watermelons, and was concealed and unknown to petitioner, thereby injuring him; that it was the duty of the Seaboard Air Line Railway Company to have inspected this freight car before delivering it to the initial carrier to be loaded with watermelons, and, upon inspection, to have remedied the defect; that it was the duty of the initial carrier to have inspected this freight car before it allowed watermelons to be loaded therein and consigned to a point off its line, and, upon inspection, to have remedied this defect; that the initial carrier had no car inspector, of which fact the Central of Georgia Railway Company was aware; that it was the duty of the Central of Georgia Railway, the delivering or ultimate carrier, to inspect this car to ascertain if there was any defect in the floor, on receiving it from the initial carrier; that all the defendants failed in their duty to inspect said freight car, and such failure on their part constituted negligence and a failure to exercise ordinary care; and that as a result of such joint and...
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