Western & Atl. R. R v. Burnett
| Decision Date | 20 May 1949 |
| Docket Number | No, 32392.,, 32392. |
| Citation | 79 Ga.App. 530,54 S.E.2d 357 |
| Court | Georgia Court of Appeals |
| Parties | WESTERN & ATLANTIC R. R. v. BURNETT. |
Rehearing Denied July 8, 1949.
[COPYRIGHT MATERIAL OMITTED].
1. The excerpts from the charge excepted to in special grounds 4, 7, 9 and 10 do not show error requiring the grant of a new trial.
2. The refusal of the court to permit the question asked by defendant's counsel on cross-examination of a witness for the plaintiff, as complained of in ground 5, in view of the length and scope and thoroughness of the cross-examination of the witness, was not an abuse of the judge's discretion in controlling the cross-examination within reasonable bounds and shows no error.
3. The charge of the court as complained of in ground 6 as to the reasonableness of certain safety rules of the Centralof Georgia Railroad and of the defendant company, and as to their applicability to the facts of the case, and their generality of statement or ambiguity, and that such rules should be construed most strongly against the companies promulgating them, which rules were plead and introduced in evidence, does not show error.
4. The charge complained of in ground 8 was not erroneous for the reasons stated in the opinion.
5. It is not necessary to consider the excerpt from the charge as complained of in ground 11 for the reason shown in the opinion.
6. The court did not err in charging as complained of in ground 12, in view of the additional charge given at the request of the defendant, for the reasons set forth in the opinion.
7. While the verdict in this case may be large and generous, this court cannot say as a matter of law that it is shown to be the result of bias or prejudice or gross mistake, and is not authorized to set the verdict aside on the ground that it is excessive.
8. The finding in favor of the plaintiff is supported by sufficient evidence on the issues involved, and the general grounds of the motion for new trial are without merit.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Action by J. G. Burnett against the Western & Atlantic Railroad to recover for injuries sustained by plaintiff when struck by a switch engine of the defendant. To review a judgment for the plaintiff, the defendant, opposed by Mrs. J. G. Burnett, temporary administratrix, appeals.
Judgment affirmed.
John L. Tye, Jr., Atlanta, Tye, Thomson & Tye, Atlanta, John Sammons Bell, Atlanta, for plaintiff in error.
Hewlett & Dennis, Atlanta, T. F. Bowden, Atlanta, for defendant in error.
J. G. Burnett sued the Western and Atlantic Railroad for $100,000 damages for personal injuries alleged to have been sustained on account of the negligence of the defendant. The jury returned a verdict in favor of the plaintiff for $65,000, and the defendant moved for a new trial on the general grounds and on a number of special grounds. The overruling of the defendant's motion for a new trial is before this court for review. The facts necessary in the consideration of the Case will be stated in the opinion.
1. Special grounds 4, 7, 9 and 10 of the amended motion for new trial relate to excerpts from the charge of the court which are alleged to be erroneous. The excerpt from the charge complained of in ground 4 dealt with the duty on the defendant of anticipating the presence of persons on the property of the railroad and to exercise ordinary care to protect such persons.
The charge complained of in ground 7 was this: "Gentlemen, when you retire, it will be your duty first to consider this question of negligence pro and con, and if you find that plaintiff cannot recover on account thereof you would stop there and write a verdict for the defendant."
The charge alleged to be error in ground 9 was as follows: "If he was injured as alleged, and if his injuries are permanent or will continue throughout his life, and if the evidence shows you with reasonable certainty the amount of money he will lose on that account in the future, he would be entitled to-recover on that account, if entitled to recover damages at all."
Ground 10 complains of this charge: "He claims that he has lost large sums of money on account of his inability to work and that he will continue to lose money throughout his future life."
The defendant does not argue either of these grounds in its brief except to say that they are not waived and are expressly insisted upon on each and every ground and reason therein set out. No cases are cited by the defendant in support of the alleged error in these grounds. We have considered these grounds carefully and in connection with the entire charge, and we do not find any error requiring the grant of a new trial.
2 Ground 5 of the amended motion avers that the court erred in refusing to allow defendant's counsel, on the cross examination of a witness offered by the plaintiff, to ask the witness why he did not incorporate in a written statement he had signed for the claim agent of the railroad company certain matter to which he testified on the trial. The witness had made an oral statement to the claim agent within two or three hours after the plaintiff was injured, from which the claim agent made pencil notes and then went off and typed it and sent it back to the witness who signed it. The witness had been asked this question: "Did you tell Mr. Ellis (the claim agent) anything about N. C. engine 536 passing your engine between Foundry Street and the concrete cross-over, " and had answered by saying "My best recollection is that I told him it did pass me." Thereupon counsel for the defendant asked the witness "Well, why did you not incorporate that in your written statement?" This latter question was excluded by the court upon objection by the plaintiff and this ruling is assigned as error.
Under the Code, § 38-1705, "The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him." A substantial denial of this right is good cause for the grant of a new trial. However, "The scope of the cross-examination of a witness rests largely within the discretion of the judge." Clifton v State, 187 Ga. 502, 508, 2 S.E.2d 102, 107. "The trial judge has a discretion to control the right of cross-examination within reasonable bounds, and an exercise of this discretion will not be controlled by a reviewing court unless it is abused." Fouraker v. State, 4 Ga.App. 692(3), 62 S.E. 116; Rogers v. State, 18 Ga.App. 332(2), 89 S.E. 460; Sweat v. State, 63 Ga.App. 299, 301 (4), 11 S.E.2d 40; McNabb v. State, 70 Ga.App. 793, 29 S.E.2d 643; James v. State, 71 Ga.App. 867, 870, 32 S.E.2d 431.
The defendant cites a number of cases to sustain its contention that this ground shows error beginning with Atlantic Coast Line Railroad Co. v. Powell, 127 Ga. 805, 811, 56 S.E. 1006, 9 L.R.A, N.S, 769, 9 Ann.Cas. 553; and including Becker v. Donalson, 133 Ga. 864, 67 S.E. 92; Owens v. Shugart, 61 Ga.App. 177, 6 S.E.2d 121; News Publishing Co. v. Butler, °5 Ga. 559, 22 S.E. 282; Burch v. Wade, 58 Ga.App. 335, 198 S.E. 553; McGinty v. State, 59 Ga.App. 675, 2 S.E.2d 134; McRae v. Boykin, 50 Ga.App. 866, 179 S.E. 535. We have examined all of these cases and find that they recognize and apply the general rules that a party is entitled to a thorough and sifting cross examination of the witnesses offered against him; that this is a substantial right, the preservation of which is essential to a proper administration of justice; that it is erroneous to unduly abridge this right of cross examination, and to do so is generally cause for the grant of a new trial. These principles are well established in our law, but whether or not the trial judge abused his discretion in refusing one or more questions on cross examination must be determined in each case under the facts thereof. The defendant also cites Thompson v. State, 181 Ga. 620, 183 S.E. 566; Mitchell v. State, 71 Ga. 128; and Floyd v. Wallace, 31 Ga. 688, which apply the rule that where the purpose is to impeach or discredit the witness great latitude should be allowed by the court in cross examination. It appears that the cross examination of the witness with reference to the written statement, and the testimony as to the particular matter not included in the statement, was very thorough and quite lengthy. Several pages in the brief of the evidence seem to relate very largly to the written statement of the witness; and the question excluded by the court was asked near the close of the cross examination on this subject. We have considered this ground most carefully and have reached the conclusion that the failure of the court to permit the particular question complained of in view of the length and scope of the cross examination, was not an abuse of the court's discretion, and did not unduly restrict or limit the defendant's right of cross examination. We find no error in this ground.
3. Complaint is made in ground 6 of the following charge of the court as to certain safety rules of the Central of Georgia Railroad and a rule of the defendant company which were plead by the defendantand introduced in evidence, to wit: ...
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