Gamble v. Central Railroad

74 Ga. 586, 1885 Ga. LEXIS 365

• Court: Supreme Court of Georgia
• Decided: February 24, 1885
• Status: Published

Opinion

Jackson, Chief Justice.

The plaintiff in error sued the railroad company for damages caused by the running of its train on which he was a passenger, and recovered a verdict of seven thousand seven hundred and fifty dollars. A new trial was granted, and the plaintiff in error excepted.

1. One error assigned is the refusal of the court to dismiss the motion for a new trial because the consent order had not been complied with by the defendant in error, the motion having been heard and decided in vacation. On a careful examination of the record on this question, we are clear that there was.no error in that judgment. The judge had the right to order a continuance of the trial at the session of the superior court of Harris county, though the trial of the motion had been set at Columbus on its former continuance. He was engaged in the business of that court, and could not leave it to sit at chambers at Columbus at that time. There was no other mode of rendering justice to the movant, and at the same time, doing no hurt to’the respondent, and the dilemma was equivalent, in its spirit and essence, to providential cause; and this court has held such a cause, from the necssity of the case, a legal reason for continuing the cause by the judge, though not at the place set for the hearing when the continuance was granted. 69 Ga., 748, 760.

The consent order did not require 'the approval of the brief of evidence at the first time and place set for the hearing, but that this brief or narrative of the stenographic reporter of the court should be there at that time, and it was there. The counsel for movant requested the judge then and there to approve it, but the-judge said he would do so at the hearing, which he had continued by authority of the consent order in term. The movant had no power to make the judge then approve it, and having it then and there ready for his examination and approval, he discharged his full duty, and was not in laches there or elsewhere, s.o far as this record exhibits the facts. 69 Ga., 748.

2. This is the first grant of a new trial, and in such cases, the grant of the presiding judge and the grounds of the motion will not be scrutinized closely by this court in order to reverse the judgment, but one verdict having been rendered, and the presiding judge being dissatisfied with that verdict. See Georgia Reports passim.

3. There was one error of law committed by the judge in denying the defendant in error the right of cross-examining the plaintiff in error fully, especially as he was his own witness and interested in the' recovery. To cross-examine thoroughly any witness is a right guaranteed by the statute in strong language. Code, §3864. It should not be relaxed where the witness is interested in the case, and still less relaxed where the witness is the party in the case testifying to recover damages for himself. Therefore the questions in regard, to the ability and skill of the plaintiff in error as a billiard player should have been allowed and answered, inasmuch as the wreck of his nervous system, he said, was part of the permanent injuries inflicted upon him by the defendant in error, and skill at such a game would throw light upon- the point whether or not that system had been so badly deranged and wrecked. Counsel for defendant in error had the right to probe his conscience fully upon a point so relevant to that issue.

On the other grounds of the motion for a new trial, we see no error. The grant of the new trial is affirmed, first, because this court will not interfere with the superior court in the first grant of a new trial, unless there be error of law, or the discretion given the presiding judge has been abused, on reviewing the facts, which abuse must be made clearly to appear ; and, secondly, because the cross-examination ' of plaintiff, as a witness, wap improperly restricted by the court, as above indicated.

Judgment affirmed.