Macon, Dublin & Savannah Railroad v. Anchors , 140 Ga. 531 ( 1913 )

Beck, J.

(After stating the foregoing facts.)

1. In the brief of counsel for the plaintiff in error it is contended that the judge below "did not approve the finding of the jury, and 'failed to exercise the 'discretion which the law contemplates he should exercise in' overruling a motion- for a new trial; and that where a first application for a new trial is made on discretionary grounds, the trial judge must exercise his discretion in approval or -disapproval of -the verdict; that the order- overruling, the motion for a new trial in this ease shows on -its face that the judge did not exercise'the discretion which the law vested in him.” -The failure of the judge below to exercise his discretion was not averred in the bill of exceptions nor made the subject of a special- exception, and is urged for the first time in the brief and argument of counsel before this court. But under the ruling made in the ease of McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. R. 71, 1 Ann. Cas. 606), it is the duty of this court to pass upon the question thus raised.

Upon hearing the motion the judge passed the following order: “June 4th,. 1912. The within motion for new trial and the amended, motion for new trial coming on to be heard, rand the • original and the amended motion are hereby overruled on all grounds therein stated. The motion was held up after argument '• till this day by the court. N. E. Harris, Judge S. C. M. C.” Fol- : lowing the order just quoted, overruling the motion for a new trial, .■ we find in the record the following: “Anchors vs. M., D. & S. R. R. Co. Not having presided on the trial of this case, I have not felt kthat my discretion is quite as broad as that of the trial judge. I •■did not see the witnesses nor hear the evidence delivered. While I think the verdict may be against the weight of the evidence to sustain it, the jury had the right to believe the plaintiff’s evidence, and I refuse to disturb the verdict. N. E. Harris, J. S. C. M. C.” ■ Immediately following this last-recited part of the record appears the following entry: “Filed in office, June 13, 1912. E. F. Hunter, Dep. Clerk.”

Pretermitting all discussion as' to whether or not the supplementary order or opinion filed by the court below as a part of the record in the case should be considered 'as a part of the order of the judge overruling the motion for a new trial, we are of the opinion that when that order and the original order are considered together it does not appear that the judge failed to exercise the discretion . vested in him by law in passing upon the motion for a new trial. A very similar question to the one presented here was considered and discussed in the case of Martin v. Bank of Leesburg, 137 Ga. 290 (73 S. E. 387).

2. The testimony of certain witnesses, and the objection raised thereto by the movant at the time of the trial, is set out in,the statement of facts. Where testimony is objected to in bulk, and upon examination it appears that a part of it was admissible, the ■order of the court overruling the objection will not be reversed if .any part of the evidence was not open to the objection made. In the testimony of each of the witnesses there is some evidence from which the jury might have found that there were structural defects in the car which was derailed, or in the track at the place where the ■derailment occurred; and such evidence tending to show these structural defects was admissible, though the witnesses did not see the car or the track until thirty days or more after the occurrence which it is alleged resulted in the death of the plaintiff’s husband. Southern Ry. Co. v. Hill, 139 Ga. 549 (77 S. E. 803).

3. While the excerpt from the charge which is excepted to by plaintiff in error was not entirely faultless and accurate, we do not think, after reading the entire charge, that it is .cause for a new trial. In the first place, we do not think the jury would have been at all confused by "referring to the plaintiff as being not killed and to his death in the same sentence.” The charge as a whole clearly and fully states the case, and there can. not be the slightest doubt that the jury distinctly understood that the plaintiff was the wife of the decedent and was suing to recover damages for his death alleged to have been caused by certain acts of negligence on the part of the defendant. And while in the excerpt from the charge quoted the law would have been completely stated as applicable to the hypothesis contained in the first part of the excerpt, in reference to the negligence of the defendant company, if the court had added that before the plaintiff could recover it should appear that the death of the plaintiff’s husband was caused by the negligence of the defendant, or it should be made to appear that the negligence was the proximate cause of the death of the plaintiff’s husband, yet such an omission as this is not cause for a new trial where it is disclosed that in a preceding part of the charge the court had made the right of the plaintiff to recover dependent upon a showing that the death of her husband was the result of the negligence of the defendant, and had properly instructed them that the plaintiff could not recover if the decedent had' been "killed by his own carelessness amounting to a failure to exercise ordinary care,” nor, although there was negligence upon the part of the defendant company, if the decedent could “by the exercise of ordinary care have avoided the consequences of the negligence of the defendant company.”

Judgment affirmed.

All the Justices concur.