Henry v. Nashville, Chattanooga & St. Louis Railway Co.

176 S.E. 906, 50 Ga. App. 49, 1934 Ga. App. LEXIS 615

Opinion

Broyles, O. J.

1. ‘“The testimony of a party -who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or equivocal.’ And unless there be other evidence tending to establish his right to recover, he ‘is not en titled to a finding in liis favor, if that version of his testimony the most unfavorable to him shows that the verdict should be against him.”’ Southern Ry. Co. v. Hobbs, 121 Ga. 428 (49 S. E. 294). Steele v. Central of Ga. Ry. Co., 123 Ga. 237 (51 S. E. 438) ; Western & Atlantic R. Co. v. Evans, 96 Ga. 481 (23 S. E. 494) ; L. & N. R. Co. v. Lusk, 37 Ga. App. 99 (139 S. E. 89) ; Long Cigar &c. Co. v. Harvey, 33 Ga. App. 326 (2) (125 S. E. 870). However, the foregoing ruling applies only to the testimony of a parly to the ease, and not to the testimony of a witness who is not such a party.

Decided October 29, 1934. B,. Garter Pittman, Porter & Mebane, for plaintiff. Wright & Govmglon, for defendant.

2. “In jjassing on a motion for nonsuit upon the conclusion of the evidence submitted in behalf of the plaintiff, such evidence should be construed 'most favorably to him, and if, so construed, a, prima facie case for the plaintiff is made out, a nonsuit should be refused.” Henry v. Roberts, 140 Ga. 477 (79 S. E. 115).

3. Under the foregoing rulings and the facts of the instant case, the jury were authorized to find from the evidence introduced by the plaintiff that the ditch and deep hole, into which the automobile (containing the plaintiff) was driven, was kept and maintained by the defendant railroad company upon its right of way; and, the other material allegations of the petition having been proved, a prima facie case for the plaintiff was made out, and the court erred in awarding a nonsuit.

Judgment reversed.

MacIntyre and Guerry, JJ., concur.