Georgia Southern & Florida Railway Co. v. Bryan , 15 Ga. App. 253 ( 1914 )

Russell, C. J.

1: “Where a judge in passing on a motion for a new trial did not originally try the case, his discretion is not as broad as it would be otherwise; but he still has discretion to grant a new trial, where the evidence preponderates against the verdict” . (Brice v. Whitehurst, 8 Ga. App. 291, 68 S. E. 1075), or where, under the evidence and the law applicable to the issue made, the verdict rendered was not demanded, and it is not made plainly to appear that the judge abused his discretion, Butler v. Sansone, 138 Ga. 767 (76 S. E. 54); Civil Code, § 6204-2. The provisions of sections 6088 and 6204 of the Civil Code, relating to the power and discretion of a trial judge as to the grant of a new trial, apply where the motion for a new trial is heard and determined either by the judge who presided at the trial or by another judge; but the scope within which the discretion may be exercised, in the consideration of the evidence; by a judge who did not preside at the trial is not as extensive as in the case of the judge who heard and observed the witnesses and who, in a sense, is to be considered as the thirteenth member of the jury. There is no language in these sections of the code from which it can be inferred that the grant of a first new trial is ever an abuse of discretion, unless the verdict set aside was demanded by the evidence adduced upon- the trial.

Decided September 23, 1914.

Action for damages; from city court of Nashville—Judge Cranford presiding.

J. E. Hall, E. K. Wilcox, Knight, Chastain & Gaskins, J. Z. & H. L. Jackson, for the railway company. Hendricks & Hendricks, Patterson & Copeland, L. E. Lastinger, contra.

3. The cross-bill of exceptions, containing no assignment of error upon any ruling or judgment, presents no question for the consideration of this court, and must be dismissed.

Judgment affirmed on main hill of exceptions; cross-hill of exceptions dismissed.

Roan, J., absent.