Steele v. Central of Georgia Railway Co. , 123 Ga. 237 ( 1905 )

Lumpkin, 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 entitled to a finding in his 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.

2. Under the plaintiff’s testimony and other evidence introduced by him in this case, he was not entitled to recover for an injury received while attempting to pass under a bridge over a highway, driving a wagon loaded with cotton; and a nonsuit was proper. Barfield v. Southern Ry. Co., 118 Ga. 256; W. & A. R. Co. v. Ferguson, 113 Ga. 712, and citations; Bridger v. Gresham, 111 Ga. 814; City of Columbus v. Griggs, 113 Ga. 597; Ray v. Green, 113 Ga. 920; Farmer v. Davenport, 118 Ga. 289.

3. This case does not fall within the ruling in Samples v. Atlanta, 95 Ga. 110.

4. Whether or not there was error in respect to permitting a question to be asked of a witness for the plaintiff on cross-examination, the ruling will not cause a reversal where the exclusion of the evidence can not affect the decision in regard to the grant of a nonsuit.

Judgment affirmed.

All the Justices concur, except Simmons, C. J., absent.

A witness introduced by the plaintiff testified, that he thought a person sitting on top of a hale of cotton which rested on two others could see the subway a hundred yards before reaching it; that, from his knowledge of the place, he thought au ordinary wagon with three bales of cotton, two lying down and one on top of them, would clear the bridge about ten inches; that the subway had been in its present condition for about fourteen years, and no one "had previously been injured by going^under it; that the subway from top to bottom was in plain view of a person walking on the ground for two hundred yards before reaching it, fellowing the direction which the plaintiff pursued; and that it would be obvious to the witness for two hundred yards before reaching the subway, with two bales of cotton on a wagon, that it would be dangerous to go under it. He also testified that “ I think as a matter of fact it would be apparent, to an ordinarily prudent man coming down the street on top of two bales of cotton, that it was dangerous to undertake to go under that subway. It would be apparent to a man of ordinary observance.” This last statement was admitted over objection. On the close of the evidence for the plaintiff the court granted a nonsuit. The plaintiff excepted.

Marcus W. Bech and Robert T. Daniel, for plaintiff. Robert L. Berner and Hall & Cleveland, for defendant.