Pitts v. Florida Central & Peninsular Railroad , 98 Ga. 655 ( 1896 )

Atkinson, Justice.

The facts are stated in the official report.

1. It may be assumed, from reading the evidence, that the jury might properly have found that the defendant was negligent. The question whether the plaintiff was himself guilty of contributory negligence, and as a consequence baired from recovery, he being an employee, is likewise a question of fact, and turns upon whether the defect complained of was so apparent, and the use of the defective appliance was so manifestly dangerous, that the plaintiff knew, or by the exercise of ordinary diligence could have known, not only of the existence of the defect, but of the danger attendant upon its use. Two things were necessary to convict him of negligence — knowledge of the defect, and knowledge of the dangerous character of the appliance in its defective condition. If the plaintiff knew of the defect, but neither knew nor had cause to know that the defect which existed was of such a character as to render the appliance dangerous, then he could not be convicted of negligence in continuing its use. It was admitted that he knew of the defect, but denied by him that he had any actual knowledge that the appliance, though defective, was dangerous, or that its continued use would likely result in injury to him. Whether or not notice of danger in the continued use of the defective appliance could be imputed to him would depend upon its character, and upon whether it was in so obviously a dangerous condition as to convey notice to a person of his intelligence of the danger which might result to him in consequence of his continuing to use it. Both of these inquiries involved issues of fact, and such issues of fact as a jury alone under our system of government is authorized ti> determine. A jury might have well inferred from the evidence that though the plaintiff knew of the defect complained of, he did not know, or did not have just reason to know, that the apiiliance was in consequence dangerous and was likely to result in injury to him in the event he continued in the employment of the company, and to use the defective appliance furnished him. It is not necessary to- cite authority to the' proposition, that whether or not a particular act be negligent is a question of fact for the jury; or to the further proposition, that if inferences favorable to a plaintiff and which would sustain his cause of action may be reasonably drawn from the evidence submitted, the court has no power to award a nonsuit.

2. Even if the declaration required amendment, or it was necessary to supplement the evidence already introduced, the amendment as made stated beyond controversy a cause of action in favor of the plaintiff. See 100 U. S. Rep. 213. The amendment being allowed, he was entitled to prove it by any legal or competent evidence which he might have had at his command. It may be stated broadly that the plaintiff is entitled as a matter of right to introduce evidence the effect of which will be to save him from a nonsuit. This doctrine was recognized in the case of McColgan v. McKay, 25 Ga. 632. In that case, after the plaintiff had closed, the defendant moved a nonsuit which was granted. The plaintiff moved to be allowed to open his case and submit other evidence, the effect of which would have saved a nonsuit; this was refused by the court and the plaintiff’s cause dismissed. This judgment was reversed, and Benning, Judge, speaking for the court, says: “It is almost a matter of course to let in evidence upon a point to save a nonsuit. The practice is commended by every consideration of expediency.” In a later case, Parker v. Fulton Loan & Building Association, 42 Ga. 456, this court approved the doctrine of the case last above referred to, and again reversed the trial judge for refusing to open the case to receive evidence the effect of which would have saved a nonsuit. In the present case, however, the court offered to the plaintiff the privilege of introducing testimony other than his own in support of the amendment, virtually holding that as to the facts stated in the amendment the plaintiff was not a competent witness. Just why he is not a competent witness it is difficult for us to understand. It is true that in testifying to the facts stated in the amendment, it might have been necessary for him to qualify or explain, or, if you please, contradict his prior testimony delivered in the case; and it is submitted that this, if an. objection at all, does not go to the competency, but to the credibility of the witness. In the case of King v. Teele, Lord Ellenborough stated the rule to be as follows, the question being as to whether one who admits himself to be an infidel is disqualified from giving evidence: “An infidel cannot admit the obligation of an oath at all, and caimot therefore give evidence under the sanction of it. But though a person may be proven on his own showing, or by other evidence, to have forsworn himself as to a particular fact, it does not follow that he can never afterwards feel the obligation of an oath; though it may be a good reason for a jury, if satisfied that he had sworn falsely on the paidicular point, to discredit his evidence altogether. But still that would be no warrant for the rejection of the evidence by the judge; it only goes to the credit of the witness on which the jury are to decide.” So in the present case, the fact that the plaintiff had previously contradicted himself concerning the matter to which he subsequently offered to testify, may afford good reason for the jury to totally discredit him, but it affords no reason why the judge as a matter of law should hold him incompetent to testify. The judge is not the keeper of the conscience of the parties, and while it is proper that he should call the attention of the witness to the gravity of the situation in which he might by contradictory testimony place himself, he has no power to exclude the witness from testifying, even though he might have reason to believe that the testimony if delivered would be false.

The Ohief Justice is of the opinion, that while the circuit judge in the first instance properly granted a nonsuit, yet he erred in the second instance in denying the privilege to the plaintiff to testify in his own behalf to the facts stated in the amendment, in order to save a nonsuit.

Judgment reversed.