Rome Railroad v. Barnett , 94 Ga. 446 ( 1894 )

The plaintiff’s allegations may be seen by reference to a former report of the case. 89 Gta. 718. The last trial resulted in a verdict for the plaintiff, and defendant’s motion for a new trial was overruled. The main witness for the plaintiff was Joe Herrick, who was fireman upon the engine that killed Barnett. According to his testimony, the engineer was aware of Barnett’s presence in time to avoid injuring him, but gave no signal or warning, and made no effort to check the engine, but recklessly or willfully ran it forward. As to testimony in conflict with that of Herrick, see the fifth headnote. The motion for new trial was upon the following grounds:

1. Refusal to continue the case for the absence of .Ashley, a material witness for defendant, by whom defendant expected to prove that, frequently after the .accident, Joe Herrick stated to him that no one on the -engine saw Barnett in time to stop, and that Herrick -did not know he was there until after the accident. Ashley had frequently assured counsel that he would •come promptly whenever the case was called for trial. .He was an engineer of the Central Railroad Co., running from Griffin to Chattanooga, and dividing his time between those two places when not running. The railroads by courtesy always send their employees to testify in behalf of other railroads, giving them leave of absence and transportation for that purpose. About a week before the trial, counsel returned from Florida, where he had been for his health, made inquiry for Ashley, and learned that several days previously he had obtained leave of absence and gone to Hot Springs for his health, but would return in a month. The application was not made for delay, etc.

2. Permitting plaintiff’s counsel in opening argument, •over objection, to read to the court, in the presence and hearing of the jury, the statement of facts and decision in the case of Railroad Co. v. Denson, 84 Ga. 774, discussing the former decision in the present case, and contending that the facts of the Denson case were analogous to those of the case on trial, and that the decision thereon -controlled the present case.

3. Refusal to charge, that the jury could not find for the plaintiff’ unless they believed beyond a reasonable doubt that the engineer was guilty of murder or some other indictable offence; and that in considering the issue as to whether the engineer was guilty of willful homicide, the railroad company would be entitled to all reasonable doubt; and if, after considering all the evidence in the case, the jury should have a reasonable -doubt of his guilt, it would be their duty to give the railroad company the benefit of the doubt and find for the defendant.

W. W. Brookes and W. T. Turnbull, for plaintiff in error. Wright, Meyerhardt & "Wright and C. N. Deatherston, contra.

4. Refusal to charge as stated in the fourth head-note.

5. Verdict contrary to law and evidence.