Sawyer v. Georgia Railroad & Banking Co.

Supreme Court of Georgia
Sawyer v. Georgia Railroad & Banking Co., 123 Ga. 251 (Ga. 1905)
51 S.E. 321; 1905 Ga. LEXIS 430
Lumpkin

Sawyer v. Georgia Railroad & Banking Co.

Opinion of the Court

Lumpkin, J.

The headnote will show that on the second trial the case was a proper one for determination by the jury. The judge who presided on the hearing of the motion for a new trial thought that the case was controlled by the ruling made by this court in 112 Ga. 346. In this we think he erred. We have carefully examined the record of the case as it then appeared, and as it is now presented; and^we find very material differences. Without setting out the evidence in detail, a few illustrations of the change of status will suffice. On the former trial the principal witness for the plaintiff was one Shields. In his testimony he strongly indicated that the plaintiff’s husband could have seen the approaching train; and while some mention was made of the possibility of there being freight-cars on the side-track,, it was very vague and uncertain as to the number, position, and effect on the view of the plaintiff’s husband while approaching the track. Indeed Shields developed into a most excellent witness for the defense. On the second trial the plaintiff did not introduce him at all, but the defendant did so. The plaintiff introduced as her leading witness one Ike Burton. *253Among other things he testified, that there were other ears between the crossing and the depot, one standing where it had been unloaded, and two more in front of the depot; that the depot was within three feet of the side-track; that the cfir 'first mentioned was standing between the main road that crosses the track and the depot; that “with that car standing there no one could see down that track until they got on the railroad; ” that the train had to pass the depot before it reached the crossing; and that it was running at the rate of about thirty-five miles an hour. Another witness testified that the train which caused the injury was due, according to schedule, at two o’clock and thirty-eight minutes p. m. There was evidence to show that it did not arrive until four o’clock. Some of the other evidence set out in the headnote was before the court on the former trial; but this will suffice to show that there were material differences. We think there was enough to sustain the'finding of the jury, and that the second verdict should have been allowed to stand. Richmond & Danville R. Co. v. Howard, 79 Ga. 44(2); Broyles v. Prisock, 97 Ga. 643 (6); Hopkins’ Pers. Inj. §§4, 90.

Judgment reversed.

All the Justices concur, except Simmons, G. J., absent, and Evans, J., disqualified. .

Reference

Full Case Name
SAWYER v. GEORGIA RAILROAD AND BANKING CO.
Cited By
2 cases
Status
Published