Atlantic Coast Line Railroad v. Westbrook

70 S.E.2d 531, 86 Ga. App. 23, 1952 Ga. App. LEXIS 863

Opinion

Felton, J.

It was not error for the court to admit the affidavits and depositions of the train crews. This evidence -was in rebuttal of the defendant’s contention that a trial in Fulton County, Georgia, would be inconvenient. The evidence tended to show that the defendant would be in no better position if the case was tried in Florida insofar as the testimony of all the living witnesses of the two crews of the trains that collided is concerned.

Under the facts stated above, the conclusion is demanded that the judge did exercise his discretion in overruling the motion.

Assuming, but not deciding, that the judge had the power and authority to grant the motion to dismiss the action without prejudice on the ground contended for, under the facts of the case he did not abuse his decretion in overruling the motion. In this case the only ground of the motion supported by evidence-was the alleged expense and inconvenience of obtaining witnesses. However, the affidavits and depositions of all the available witnesses were favorable to the plaintiff, and there was no evidence or intimation that any of the witnesses had made false affidavits or had given false testimony and would give different testimony at the trial. The only other evidence referred to was the service record of the deceased, which was in Florida, and there was no effort made to show just how important such evidence was.

Judgment affirmed.

Sutton, C.J., concurs. Worrill, J., concurs in the judgment.