Atlanta Rapid Transit Co. v. Young

Supreme Court of Georgia

Atlanta Rapid Transit Co. v. Young

43 S.E. 861, 117 Ga. 349, 1903 Ga. LEXIS 233

CourtSupreme Court of Georgia

DecidedMarch 13, 1903

StatusPublished

Cited by2 cases

This text of 43 S.E. 861 (Atlanta Rapid Transit Co. v. Young) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atlanta Rapid Transit Co. v. Young, 43 S.E. 861, 117 Ga. 349, 1903 Ga. LEXIS 233 (Ga. 1903).

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Opinions

Lamar, J.

The only question argued before us was the error of the judge in refusing a motion for a new trial because of newly discovered evidence. It appeared that the trial of an action for personal injuries in the city court of Atlanta lasted for four days, and that on the first day of that trial the plaintiff testified that the injury occurred at the intersection of two streets in the city, and was witnessed by certain persons who were seated on the front porch of one of the houses immediately in front of the place where the accident happened, — stating however that she did not know their names. After the trial the defendant procured from these eye-witnesses affidavits as to facts which were not, strictly speak-, ing, impeaching, but new and independent facts material to the defendant’s contention, and, while contradictory of facts testified to by the plaintiff, might possibly have changed the result. In neither of these affidavits is it stated, nor does it appear elsewhere in the record, where the witnesses were during the four days of the trial. The only, allusion to their whereabouts is in an affidavit of an officer of the defendant, that the witnesses “ were not in the State of Georgia at the time the said case was tried.” This statement on the part of the officer may have been true to the best of affiant’s knowledge and belief, and yet that information may have been derived from hearsay. In fact, as the officer appears to have been in Atlanta during the trial, it must have been hearsay; for no one in Atlanta was in position to know positively that the witnesses were at the same time out of the State. But if the officer, of his own knowledge, actually knew where the witnesses were; if he himself was out of the State during the period of the trial, and therefore in a position to state positively that the witnesses were not in the State of Georgia it would then have been not only possible, but proper, for him to state where the witnesses were, in order that an issue could have been raised as to whether it was pos[353]*353sible to have secured their attendance. They may have been in an adjoining State, on the line of a railroad, in reach of a telegram or long-distance telephone message; and while they could not have been compelled to attend, a request to that effect might have been complied with. In other words, by exercising ordinary diligence their attendance might have been secured; and if so, the trial, which is otherwise practically conceded to- have been free from errors, would have heen final and a new hearing obviated. Of course, if they had declined to come from a neighboring State on being requested so to do, their refusal would in no way have affected the question of diligence on the part of the movant; for it had done all it could do. If the officer knew where the witnesses were, it ought to have been shown why no attempt was made to have them present. The whereabouts of the witnesses at the time of the trial may shed light on the question of diligence; but the real point was, not where they were, but could their attendance have been •secured ? Where the record fails to show that it was impracticable to communicate with them, or to have had them present in the exercise of ordinary diligence, the question as to laches is left open.

It was also contended, that, inasmuch as these witnesses lived in the house immediately opposite the place of the accident, and as the petition gave notice as to where the injury occurred, proper diligence required that inquiry should have been made in the neighborhood, with a view of discovering whether any person living there or near by had seen the occurrence. We do not lay down any rule on this subject; for it is a matter to be passed onin the first instance by the trial judge. It is for him to say, as a trior of the question of fact, whether diligence has been exercised; and where, as in this case, he seems to have found that, either before the trial or during the trial, the defendant had enough information to put it on inquiry as to the possibility of securing the testimony of these two witnesses, and where he finds that the showing of proper diligence has not been made, his ruling will not be interfered with by this court. Civil Code, §§ 5480, 5481.

There was also newly discovered evidence of other witnesses; but their testimony, we think, was impeaching in its nature.

Judgment affirmed.

By four Justices.

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Lamar, J.

The only question argued before us was the error of the judge in refusing a motion for a new trial because of newly discovered evidence. It appeared that the trial of an action for personal injuries in the city court of Atlanta lasted for four days, and that on the first day of that trial the plaintiff testified that the injury occurred at the intersection of two streets in the city, and was witnessed by certain persons who were seated on the front porch of one of the houses immediately in front of the place where the accident happened, — stating however that she did not know their names. After the trial the defendant procured from these eye-witnesses affidavits as to facts which were not, strictly speak-, ing, impeaching, but new and independent facts material to the defendant’s contention, and, while contradictory of facts testified to by the plaintiff, might possibly have changed the result. In neither of these affidavits is it stated, nor does it appear elsewhere in the record, where the witnesses were during the four days of the trial. The only, allusion to their whereabouts is in an affidavit of an officer of the defendant, that the witnesses “ were not in the State of Georgia at the time the said case was tried.” This statement on the part of the officer may have been true to the best of affiant’s knowledge and belief, and yet that information may have been derived from hearsay. In fact, as the officer appears to have been in Atlanta during the trial, it must have been hearsay; for no one in Atlanta was in position to know positively that the witnesses were at the same time out of the State. But if the officer, of his own knowledge, actually knew where the witnesses were; if he himself was out of the State during the period of the trial, and therefore in a position to state positively that the witnesses were not in the State of Georgia it would then have been not only possible, but proper, for him to state where the witnesses were, in order that an issue could have been raised as to whether it was pos[353]*353sible to have secured their attendance. They may have been in an adjoining State, on the line of a railroad, in reach of a telegram or long-distance telephone message; and while they could not have been compelled to attend, a request to that effect might have been complied with. In other words, by exercising ordinary diligence their attendance might have been secured; and if so, the trial, which is otherwise practically conceded to- have been free from errors, would have heen final and a new hearing obviated. Of course, if they had declined to come from a neighboring State on being requested so to do, their refusal would in no way have affected the question of diligence on the part of the movant; for it had done all it could do. If the officer knew where the witnesses were, it ought to have been shown why no attempt was made to have them present. The whereabouts of the witnesses at the time of the trial may shed light on the question of diligence; but the real point was, not where they were, but could their attendance have been •secured ? Where the record fails to show that it was impracticable to communicate with them, or to have had them present in the exercise of ordinary diligence, the question as to laches is left open.

It was also contended, that, inasmuch as these witnesses lived in the house immediately opposite the place of the accident, and as the petition gave notice as to where the injury occurred, proper diligence required that inquiry should have been made in the neighborhood, with a view of discovering whether any person living there or near by had seen the occurrence. We do not lay down any rule on this subject; for it is a matter to be passed onin the first instance by the trial judge. It is for him to say, as a trior of the question of fact, whether diligence has been exercised; and where, as in this case, he seems to have found that, either before the trial or during the trial, the defendant had enough information to put it on inquiry as to the possibility of securing the testimony of these two witnesses, and where he finds that the showing of proper diligence has not been made, his ruling will not be interfered with by this court. Civil Code, §§ 5480, 5481.

There was also newly discovered evidence of other witnesses; but their testimony, we think, was impeaching in its nature.

Judgment affirmed.

By four Justices.

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43 S.E. 861, 117 Ga. 349, 1903 Ga. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlanta-rapid-transit-co-v-young-ga-1903.

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