Savannah, Florida & Western Railway Co. v. Harrigan

7 S.E. 280, 80 Ga. 602

• Court: Supreme Court of Georgia
• Decided: July 11, 1888
• Status: Published

Opinion

Bleckley, Chief Justice.

1. In a case so close as this upon the merits of the controversy, illegal testimony, though in itself trivial, might sway the jury and control the verdict. It was palpable error, we think, to suffer the plaintiff to testify, over objection, that his character for truth and veracity had never been attacked, and that he boarded with Kennedy, the tailor, who could testify to his good character. There is no rule in or out of the books, so far as we know or have ever heard, by which this evidence could be classified as admissible.

2. The error, though so obvious, is so slight, that it would be no cause for granting a new trial under ordinary circumstances; but this case, upon the legal evidence, is very, very doubtful. If the plaintiff below-is entitled to recover at all, on the general merits of the dispute, he is barely entitled; he has no surplus of merits to balance off against his own illegal testimony, and he ought to get his verdict, if he can, without the aid of such testimony. Furthermore, the damages are apparently excessive. We do not undertake to say absolutely that they are too much, but tested by the evidence and by the ordinary run of recoveries in damage cases, cases of personal injury, they have to us a look of disproportion.

Though the only error committed on the trial (we find only.the one) was of a minor character, we think it was cause, in this case, for a new trial, and that a new trial should be granted.

Judgment reversed.