Tifton, Thomasville & Gulf Railway Co. v. Chastain

50 S.E. 105, 122 Ga. 250, 1905 Ga. LEXIS 162

• Court: Supreme Court of Georgia
• Decided: March 4, 1905
• Status: Published

Opinion

Cobb, J.

The plaintiff sued the railway company for damages, and recovered a verdict for $2,000. The judge granted a new trial, unless the plaintiff would write off $1,000 from the verdict, which being done, a new trial was refused. The defendant excepted. and assigns error upon tbe judgment just referred to, as well as upon other rulings made during the trial. In this court the defendant in error filed a motion to strike from the record certain portions thereof.

1-5. The questions raised by the motion to strike parts of the record are dealt with' in the headnotes, and need no further elaboration.

6. The demurrer to the petition was general. As against such a demurrer the petition set forth a cause of action. The evidence of the plaintiff established the material allegations of the petition, and hence there was no error in refusing to grant a nonsuit.

7. The verdict was for $2,000. One ground of the motion for a new trial was that this verdict was excessive. The judge granted a new trial, unless the plaintiff would reduce thq amount of the verdict to $1,000, which the plaintiff promptly did. This action on the part of the judge,clearly indicates that the finding of the jury was not at all satisfactory to him as to amount; and such being the case, he should have granted a new trial, and allowed another jury to assess the amount of damages, instead of assessing them himself, which was the effect of the order requiring the plaintiff to write off one half of the recovery. Central Ry. Co. v. Perkerson, 112 Ga. 924 (4).

Judgment reversed.

All the Justices concur.