Southern Railway Co. v. Smallwood , 26 Ga. App. 1 ( 1920 )

Bloodworth, J.

1. Tlie court did not err in admitting testimony as complained of in the 1st, 2d, and 3d grounds of the amendment to the motion for a new trial. Indeed, we should not consider the 2d of these grounds, because it is incomplete, in that it does not name the witnesses as to the admission of whose testimony c'omplaint is made. Practically the same evidence complained of in the 3d ground was admitted without objection.

2. When read in connection with the entire charge, there is no error in any of the excerpts therefrom of which complaint is made. Substantially the same exception as made in ground 5 of the amendment to the motion for a new trial was made when this case was first before this court, and this part of the charge was then held to be without reversible error. 23 Ga. App. 810, 811(4) (99 S. E. 539).

3. The jury has twice found in favor of the plaintiff in this case. No error of law is shown. It cannot be said that the verdict is without any evidence to support it. The trial judge has approved the finding of the jury, and this court is without power to set it aside on the general grounds.

Judgment affirmed.

Broyles G. J., and Lulce, J., concur.

The instructions complained of in ground 5 were as follows: “ If you believe from the evidence in this case that the plaintiff’s wife was a passenger on one of the defendant’s trains, as he alleges that she was in his petition, and that while she was such a passenger she was injured in some way that he alleges that she was injured, and to the extent that he claims she was injured, and that she received that injury as the result of the operation of one of its trains by the defendant, then the law would raise a presumption that the defendant was negligent in each manner complained of in the petition, and this presumption would be sufficient upon which to base a recovery, unless the defendant rebutted this presumption by evidence to satisfy your minds that at the particular time in question it was exercising the degree of care required of it by law and in the discharge of its duty in this particular, or that the plaintiff’s wife could have avoided such injury by the exercise of ordinary diligence for her own protection.” It was contended that these instructions were error because they were in effect a charge that the matters alleged to be negligence constituted negligence, and because one of the grounds of negligence alleged was the condition of a steel rail over which the plaintiff’s wife fell, and an injury thus caused would not be an injury occurring in the running of trains, to which the presumption of negligence, under the Civil Code (1910), § 2780, would apply, and the court should have eliminated that allegation.

Edgar A. Neely, J. O. Adams, Ed. Quillian, G. B. Faulhner, for plaintiff in error. C. N. Davie, E. D. Kenyon, contra.