Anderson v. Southern Railway Co. , 107 Ga. 500 ( 1899 )

Fish, J.

1. Complaint was made, in the motion for a new trial, of the admission of testimony upon the trial to sustain the credibility of one of the witnesses for the defendant, whose character the plaintiff contended had not been assailed. Several witnesses testified, in behalf of the plaintiff, that the death of Andrew Wright, for whose homicide the suit was brought, was. caused by McCrary, a conductor on defendant’s train, wilfully knocking him off the train with a piece of coal, and causing him to fall between the cars and to be run over and killed. McCrary, who was introduced as a witness by the defendant, testified, in substance, that he did not knock Wright off the-train, nor throw any coal at him, nor use any violence whatever towards him. The court then permitted the defendant to-prove by a number of witnesses that they knew McCrary, knew his general character, that it was good, and from that character they would believe him' on his oath. This testimony was admitted over plaintiff’s objection that it was irrelevant and illegal, in that no effort had been made in any manner to impeach McCrary. We think the court erred in allowing this evidence in-support of McCrary’s character for veracity to go before the jury. While it is true that his testimony was in direct conflict with that of several witnesses who testified for the plaintiff, yet it is well settled that a mere conflict between the testimony of witnesses for the respective parties to an action will not authorize the admission of evidence as to the credibility of such witnesses. Hamilton v. Conyers, 28 Ga. 276; Travelers Insurance Co. v. Sheppard, 85 Ga. 751 (5); Miller v. Western & Atlantic Railroad Co., 98 Ga. 480; Bell v. State, 100 Ga. 78; 5 Am. & Eng. Enc. L. (2d ed.) 854. It was argued by counsel for the defendant, that the allegations of the petition and the testimony of plaintiff’s witnesses put the character of McCrary in issue, by charging him with the commission of a serious crime, viz. with wilfully and wantonly knocking Wright off defendant’s train, thereby causing his death; and that as the plaintiff contended that McCrary represented the defendant in what he did, the defendant should be permitted to establish the general character' of its agent for truth and veracity. To sustain this contention counsel cite Civil Code, § 5159; McNabb v. Lockhart & Thomas, 18 Ga. 495; Planters & Miners Bank v. Neel, 74 Ga. 576; DuBose v. DuBose, 75 Ga. 753; Falkner v. Behr, Ib. 671; Columbus & Rome Ry. v. Christian, 97 Ga. 56; German American Mutual Life Asso. v. Parley, 102 Ga. 720. We do not think these authorities support the contention of defendant’s counsel. Upon examination it will be seen that they are simply to the effect that when the nature of the action involves a particular trait of character of a party thereto, evidence in reference to such trait is admissible. This is in accord with the general rule that evidence of character, when admissible, should be so restricted as to have some reference or analogy to the trait involved. 5 Am. & Eng. Enc. L. (2d ed.) 856, and cases cited. If in the present case the witness McCrary be treated as the defendant, then the evidence to support his general character for truth and veracity was not admissible, because that particular trait of his character was not involved in the assault which the plaintiff contended he made upon Wright.

2. One of the grounds of the motion was, that the court erred in giving in charge, at the request of defendant’s counsel, §5163 of the Civil Code which declares that,“Where a party has evidence m his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded; but this presumption may be rebutted.” The error assigned is that there was no evidence to justify this charge. To this ground the court attached the following explanatory note: “With reference to the statement of facts as to the 19th ground, my recollection of the contention of counsel is as follows : Plaintiff’s declaration alleged that Andrew Wright in company with John Reese and others got upon the coal-car in the train of defendant company on the occasion when Andrew Wright was killed, and on the trial of the case Reese was sworn as a witness for the plaintiff and was put upon the stand by plaintiff’s counsel with the apparent intention of introducing him as a witness, and after consultation among counsel for the plaintiff they stated that they would withdraw the witness and not introduce his testimony. Counsel for defendant contended in their argument before the jury that the evidence for the plaintiff showed, and the petition alleged, that Reese was with Andrew Wright at the time, and that if he knew facts that were materially beneficial to the plaintiff’s case that they should have introduced him as a witness, and that not having introduced him as a witness authorized an inference that his testimony would not-benefit the plaintiff’s case. Counsel for defendant read from the code the principle invoked, and requested a charge upon the same, which was given. The court did not undertake, as will be seen by reference to the -charge, to apply this principle of law to either side, simply giving it as a principle of law, that the jury might consider the «ame in connection with the testimony in the case.” We do not think the facts of the case authorized the charge. There is nothing in the record showing that Reese, or any of the -other persons who got upon the defendant’s train with Wright, was-under the power or control of the plaintiff, nor does it affirmatively appear that Reese, or any of them, knew the facts «of the homicide. The plaintiff introduced several witnesses who testified that they saw McCrary, the conductor, knock Wright off the train with a piece of coal, thereby causing him to fall beneath the cars and to be run over and killed. Therefore it could not be said that the plaintiff had more certain and satisfactory evidence in his power to sustain his contention, and yet relied on that which was of a weaker and inferior nature, even if Reese and all of such persons had been under his power or control, and even if they all might have been where they could have seen what occurred when Wright was killed.

3. The motion further complains that “the court erred in refusing to permit plaintiff to prove by the witness Jesse Moore, that the deceased, Andrew Wright, had frequently gotten on defendant’s freight-trains similar to this, about this same place and about the same part of the train, headed in the same'direction, to go down to Bullards, or to the bridge, or other neighboring point, to fish or hunt; and that the conductors instead of putting him off had permitted it, and accepted pay either in money or fish, sometimes one, sometimes the other; that the defendant through its conductors permitted him to get between the cars and accepted for his transportation sometimes money and sometimes fish.” In this connection counsel for plaintiff stated that he “could not bring the testimony to any train on which conductor McCrary was in charge.” Plaintiff’s contentions were, in substance, (1) that McCrary, who was in charge of the defendant’s freight-train as conductor, wilfully and without any provocation knocked Wright off such train with a piece of coal, causing him to fall beneath the cars and be killed; (2) that said conductor wrongfully and violently compelled Wright to leave such train while it was in rapid motion, by reason of which he fell between the cars and lost his life. The testimony of plaintiff’s witnesses, if credible, sustained the former contention. The evidence for the defendant was to the effect that Mc-Crary did not knock Wright off the train, nor use any violence whatever towards him, that McCrary did not even know that Wright was on the train. If either of the plaintiff’s contentions were true, the defendant would be liable, whether Wright was rightfully or wrongfully on the train. If there as a passenger, the conductor was bound to exercise extraordinary diligence to protect his life and person; if he was a trespasser, he was entitled to protection against wanton and unnecessary violence on the part of the conductor, in expelling him from the train. Civil Code, § 2266; Higgins v. Southern Ry. Co., 98 Ga. 751; Savannah, Fla. & W. Ry. Co. v. Godkin, 104 Ga. 655. As the only purpose of this testimony of Moore was to show that Wright was on the train rightfully, we think the court did not err in rejecting it as irrelevant.

4. Extracts from the judge’s charge are set forth in grounds 13, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25 and 26 of the motion for a new trial, and excepted to generally, without specifying, in any instance, in what the error consists. It is urged by counsel for the defendant in error that such assignments of error' are too general to be considered. While § 5530 of the Civil Code provides that, “When a party desires to review the judgment of the court in granting or refusing a new trial, the plaintiff in error shall specifically set out the errors complained of,” etc., yet, in view of the settled practice and rulings of this court, general assignments of error like those just referred to must invoke at least a limited consideration. In Hunley v. State, 104 Ga. 755, it was held that, “Where the charge complained of appears on its face to be free from error, and no specific assignment of error is made on it, this court can not consider it. If the error is apparent, the charge may be considered on a general complaint that it is error. ” In other words, a general assignment of error upon an extract from the judge’s charge will be considered for the purpose of ascertaining whether such extract states a sound legal proposition; if it does, that is an end of the matter. This court will not then inquire and determine whether the law embraced in the charge complained of be adjusted to the issues and proof in the case, for the simple reason that no such point is made. The truth is, that a complaint that a certain specified charge was erroneous practically amounts, pure technicality aside, to a specific complaint that the trial judge misstated the law. Therefore, such complaint should be treated as a sufficiently explicit assignment of error to raise the question whether or not the proposition complained of is, or is not, considered in the abstract, correct, thus placing the burden upon this court of ascertaining what the law upon the subject is, and of then comparing the same with - the charge of which complaint is made. If the charge correctly stated the law, then no error has been shown by the complaining party under his general exception, and every presumption will be in favor of the judgment. If the excerpt from the charge of the court, generally excepted to, be wholly erroneous, then, as all error is presumably prejudicial, this court will further consider the matter by examining the record for the purpose of ascertaining if the party complaining has really been injured by the erroneous charge. What was said in the ■cases of Lamar v. State, 72 Ga. 205, Wilson v. Garrick, Ib. 663, Higgins v. Cherokee R. R., 73 Ga. 149, Erskine v. Duffy, 76 Ga. 603, and Georgia R. R. v. Olds, 77 Ga. 673, and perhaps in other cases, as to the requirement of specific assignments of •error, is not really in conflict with what we have herein stated. An examination of those cases will show that while a strict rule as to assignments of error was announced, yet in each case the charges which were generally excepted to were correct expositions of the law, and it further appears that the court examined them, and in several instances expressly stated that they were not erroneous. The spirit, at least, of all that is laid down in these cases is, we think, in complete harmony with what is now ruled. We have carefully considered all of the extracts quoted from the charge, which were excepted to generally in the above-indicated grounds of the motion, and find no error in them, save those complained of in the 13th and 15th grounds, and both of those, while in some slight respects erroneous, contain distinct propositions of sound law. According to numerous decisions of this court, the rule is, that a general exception to an extract from the charge makes the simple question whether the whole extract is erroneous; and unless the whole of it be illegal, the exception must specifically point out the illegal part, otherwise it can not be ascertained whether the party is complaining of the part that is sound or of that which is erroneous. For these reasons, the 13th and 15th grounds can not be furthe’r considered.

Judgment reversed.

All the Justices concurring.