Tift v. Jones

77 Ga. 181

• Court: Supreme Court of Georgia
• Decided: March 5, 1887
• Status: Published

Opinion

Clarke, Judge.

The record in this case presents twenty-three assignments of error. Five of these, to-wit, the fourth, fifth, sixth, seventh and eighth, relate to the rulings and conduct of the judge pending the introdution of the evidence; sixteen, to-wit, .the first, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second and twenty-third, to the charge of the court, and two, to-wit, the second and third, to the verdict. We will pass upon these assignments in the order stated, except that, for reasons which will appear obvious, we shall decide nothing as to the verdict:

1. The complaint on the fourth assignment of error is, that the defendant’s right to cross-examine the plaintiff was abridged by the court. We find, on reading the brief of evidence, that this complaint is without merit. It appears simply that some colloquy occurred between the judge and the leading counsel for the defendant about the propriety of a question which the latter asked the plaintiff, in which the judge, after some hesitation, allowed the question. Nothing was said by the judge to the injury of defendant.

2. What is here said about the fourth assignment of error applies also to the fifth, which, indeed, relates substantially to the same matter.

8. The sixth assigment of error is not well taken. The evidence to which it refers, and which was allowed over defendant’s objection; was directly responsive to a question propounded by his counsel. It may be added, too, that the question was in line with several others which immediately preceded it.

4. It is alleged, in substance, in the seventh assignment, that the judge, in passing upon the admissibility of some testimony tendered by plaintiff, referred, by way of explaining his judgment, to certain facts as already in evidence. The defendant says that this is error, because it involves an expression of opinion by the judge that the facts recited by him were proved; and further, because the judge misstated these facts as exhibited in the testimony. The latter objection appears, on an inspection of the brief of evidence, to be unfounded. The judge stated correctly what the witness in question had testified. The other objection rests upon a confused notion of evidence and proof. “ The word evidence, in legal acceptal ion,” says Greenleaf, “includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. This term and the word proof are often used indifferently as synonymous with each other; but the latter is applied by the most accurate logicians to the effect of evidence, and not to the medium by which truth is established.” Green. Ev., vol. 1, sec. 1. Should a judge declare what has been proved, he would violate a statute of this state and usurp the functions of the jury, but there are many purposes for which he may rightly state matters which are in evidence. 22 Ga. 403; 30 Id. 426 ; 43 Id. 368; 56 Id. 365; 68 Id. 292.

5. The question excepted to as leading in the eighth assignment of error does not appear to us to be open to this criticism, when taken in connection with the antecedent examination of the witness. 'The matters in the question- which might have imparted to it this character had already been fully disclosed by the witness. The testimony set out in this assignment as objectionable cannot be considered by this court, as no ground of objection is mentioned. The rule that the “ bill of exceptions shall specify plainly the decision complained of and the alleged error ” is not complied with where a party excepts to testimony without giving any reason why it should not be received. Code, §4251; 14 £«.173,134.

6. We come now to a long series of exceptions to the charge of the court. It is alleged in the first assignment of error that the court failed to give to the jury certain written instructions therein set out and which were duly presented to the judge. We think the request was properly refused. It is the duty of the judge to explain to the jury what is meant by ordinary care, but he cannot rightfully direct them that certain facts recited by him do or do not constitute ordinary care in a given case. Negligence and diligence are questions for the jury, to be determined in each case upon its own facts, and the judge would invade its province should he declare when either is proved. 60 Ga. 339, 441; 74 Id. 385,426. The court has qualified this rule to the extent only of deciding that, where the law itself requires the performance of any act, the judge may instruct the jury that due diligence would require the doing of such act. 65 Ga. 120.

7. In respect to the other complaints against the charge of the court, we are of opinion that, with one exception, they are not just. This exception relates to so much of the charge as is copied in the ninth assignment of error. The language is as follows : a That the duty of a toll-bridge keeper imposed by law is to use ordinary care and diligence in putting and keeping his bridge in such safe condition as that any one may cross over it safely and without injury who exercises ordinary care and diligence on their part in so crossing. If any damage should occur, by reason of the neglect or carelessness or the bad conduct of the toll-bridge keeper, he would be liable, provided the party who is crossing exercised ordinary care and diligence in so crossing.” The last sentence of this instruction is taken substantially from section 690 of the Code of this State, the whole of which is as follows:

“ Any proprietor of any bridge, ferry, turnpike or causeway, whether by charter or prescription, or without, or whether by right of owning the lands on the stream, are bound to prompt and faithful attention to all their duties as such; and if any damage shall occur by reason of nonattendance, neglect, carelessness or bad conduct, he is bound for all damages, even if over and beyond the amount of any bond that may be given.”

We think that so much of the charge as refers to the bad conduct of a toll-bridge keeper is error, not because it is not law, but because it was inapplicable to the case being tried. What the case was must appear from the pleading. The plaintiff in his delaration sues for a breach of duty committed against him by the defendant while he was acting in the capacity of keeper of a toll-bridge and the plaintiff was a traveler over such bridge. What the breach of duty was is clearly set forth. It is charged to have consisted solely in the negligent failure of the defendant to keep his bridge in a safe condition for travel. No other departure by defendant from his obligations is intimated. Certainly no bad conduct is alleged against him. Tet with this case stated on paper by plaintiff as all that he claimed, the judge informed the jury that, if any damage occurred to plaintiff by reason of the neglect or carelessness or the “ bad conduct ” of the defendant as the keeper of a toll-bridge, he could recover therefor, thus presenting as a distinct cause of action “ bad conduct ” on defendant’s part. We are constrained to regard this language in the charge as inappropriate and likely, under the peculiar facts of this litigation, to-Tiave misled the jury. The judgment of the court below is therefore reversed and a new trial ordered.

Judgment reversed.