Western & Atlantic Railroad v. Gardner , 74 Ga. App. 599 ( 1946 )

MacIntyre, J.

The special grounds of the motion for new trial are but an elaboration of the general grounds. Hence, the sole question for our determination is, did the evidence authorize the verdict.

In Lavender v. Kurn, 327 U. S. 645 (66 Sup. Ct. 740, 90 L. ed. 692), which was an action under the Federal Employers’ Liability Act, it was said: “In action under Federal Employers’ Liability Act for death of railroad switch tender, where there was reasonable basis in evidence for inferring that mail hook swinging from side of mail car struck deceased and jury made that inference, factual dispute could not be relitigated in reviewing court and fact that there was evidence tending to show that it was physically and mathematically impossible for hook to strike deceased and showing facts from which it might reasonably be inferred that deceased was murdered was irrelevant on appeal.” It was further stated that, “Where there is reasonable basis in record for jury’s verdict, appellate court may not weigh conflicting evidence, judge the credibility of witnesses and arrive at a conclusion opposite from -the one reached by the jury.”

We think that there was a reasonable basis in the evidence of the plaintiff upon which to rest an inference upon a premise of fact, and thus to authorize the jury to infer that the negligence of the railroad company was the proximate cause of the plaintiff’s injury. In short we think that the testimony of the plaintiff furnished a reasonable basis for the verdict of the jury. Williams v. Paul F. Beich Co., 74 Ga. App. 429 (40 S. E. 2d, 92).

“A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to- ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.” Sappington v. Bell; 115 Ga. 856 (42 S. E. 233).

The testimony of the engineer, conductor, fireman, and other witnesses for the railroad company relative to the jerking of the train and to certain statements of the plaintiff were at' variance •with the testimony of the plaintiff. However, the jury being the sole judges of the credibility of the witnesses were authorized to accept the testimony of the plaintiff in preference to that of the defendant’s witnesses. Waters v. Guile, 234 Eed. 532 (6-7).

“‘The opinion of an expert witness is not conclusive upon the jury. Such testimony is intended to aid them in coming to a correct conclusion upon the subject; but the jury is not bound by such opinion, and can disregard it. The jury may deal with such testimony as they see fit, giving credence to it or not.’” Ocean Accident & Guarantee Corp. v. Lane, 64 Ga. App. 149 (12 S. E. 2d, 413).

The local surgeon for the Western & Atlantic Eailroad testified: That “I recall, back in August of last year, making an examination of Mr. H. Z. Gardner, the plaintiff in this case. He was sent to me by a representative of the Western & Atlantic Eailroad. My examination of him was on August 28th. My examination at that time disclosed he had a bilateral hernia or hernias, one on the right and one on the left . . in the inguinal region. . . I performed that operation, one on each side. I performed one operation on him last September 13th, when I did the right side, and then on the 29th I did the left side. . . It is my opinion these hernias were the result of congenital defect. The term congenital means something you are born with. In my experience I have operated on and repaired a good many inguinal hernias. And from my experience with inguinal hernias and from my examination of Mr. Gardner I say it is my opinion that his were congenital, or that he was born with a weakness there, and not as the result of any strain, or sprain, or jolt. In my experience I have not found any one born with normal structure who had a hernia. . . I said I had never seen a hernia that I thought resulted from a strain or jerk or jolt. Hernias are caused by congenital weakness of structure together with a protrusion of the lining of the abdominal wall out through the inguinal ring; that is generally accepted in medicine and surgery, in practically all inguinal hernias. As to why it did not appear on this man prior to the time it did, if it did not result from a strain or jerk or jolt—well, it just has to appear some time, and it might have appeared while he was walking down the street, or any other time. . . Hernia is the medical name for such a condition as that, and a lot of people call it rupture, which is just another expression for it.”

Under the rule above stated, the jury is not bound by such ex-' pert testimony and opinions of the doctor and can disregard it. They seem to have exercised this right and disregarded his expert opinion, and the plaintiff’s testimony authorized the verdict. Although his testimony contained some contradictions, there was no abuse of discretion in denying a new trial.

This case was considered and decided by the whole court, as provided by the act approved March 8, 1945, requiring that the full court pass upon cases in which there is a dissent.

Judgment affirmed.

Button, P. J., Felton, Gardner, and Parker, JJ., concur. Broyles, G. J., dissents.