Charleston & Western Carolina Railway Co. v. Attaway

66 S.E. 548, 7 Ga. App. 231, 1909 Ga. App. LEXIS 608

• Court: Court of Appeals of Georgia
• Decided: December 24, 1909
• Docket: 2070
• Status: Published

Opinion

Powell, J.

1. The petition as amended set forth a valid cause of action.

2. Reasonable certainty is all that can be required, even as against special demurrer.

(a) A defect in a machine may be described by showing that the machine was in such condition that it produced certain definitely described' results which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective. Atlantic Coast Line R. Co. v. Davis, 5 Ga. App. 214, 216 (62 S. E. 1022), and eases cited; Bub-bard v. Macon Ry. <£- Light Oo., 5 Ga. App. 223, 226 (62 S. E. 1018).

3. A j'uror who has served at a previous trial and joined in rendering a verdict in favor of one of the parties is subject to challenge for cause upon a subsequent trial of the case; and the court properly caused such a juror to be removed from the list before the parties were required to strike.

A What purports to be a brief of the evidence in this ease does not comply either literally or substantially with the requirements of section 5488 of the Civil Code of 1895. This court, therefore, is under the duty of declining to consider any of the alleged errors depending upon the consideration of the evidence. See Albamj & Northern Ry.' Oo. v. Wheeler, 6 Ga. App. 270 (6.4 S. E. 1114).

Action for damages; from city court of Bichmond county— Judge Eve. July 21, 1909.

Submitted November 19, Decided December 24, 1909. W. K. Miller, for plaintiff in error. H. G. Honey, contra.

5. An inspection of the brief of the evidence would be necessary to determine the validity of the alleged exceptions as to the excluded testimony, as well as to the charge of the court, based on the testimony. Exceptions to rulings upon testimony and exceptions to the charge of the court must, in order to be intelligently determined, be considered in connection with the testimony actually admitted upon the trial. Where there is no legal brief of the evidence such exceptions can not usually be considered. Judgment affirmed.