Orr & Hunter v. Garabold , 85 Ga. 373 ( 1890 )

Blandford, Justice.

1. A verdict having been rendered in favor of the defendant in error against the plaintiffs in error, a motion was made for a new trial upon the ordinary and general grounds in such motions, that the verdict was contrary to law, contrary to the evidence, strongly and decidedly against the weight of the evidence and the principles of law. We think the verdict is in accordance with the law as applicable to the facts of this case, and that the finding of the jury is sustained by the evidence.

2. The 4th ground of the motion is that the court erred in refusing to grant a nonsuit at the close of plaintiff’s evidence. We think there was sufficient evidence to have authorized the case to go to the jury, and that the ruling of the court refusing to grant a nonsuit was right.

3. The 5th ground of the motion complains that the court refused to give a certain charge therein set out, to the effect that it is the duty of every prudent man to take reasonable precautions against injury to himself; that when he is about to cross a street in a city, the law makes it his duty to look and listen to see if any vehicle is about to pass, and if he should recklessly cross the street without looking or listening, and could have ascertained that a vehicle was about to pass if he had looked and listened, and the vehicle hurts him, then the law says it is negligence per se on his part, and he would not be entitled to recover. We think the court did right to refuse this charge. What was negligence under the facts of this case was a question for the jury; hence, it would have been manifest error to have charged as requested in this ground of the motion. Negligence under such circumstances is based both upon law and fact to some extent; but the law does not say what is negligence per se in a case of this kind.

4. The 6th ground of the motion alleges error in admitting the mortality tables in evidence. The plaintiff's in,error can take nothing on this ground because it appears that the mortality tables were withdrawn from the jury, and the court instructed the jury to pay no attention to them.

5. The 7th ground of the motion complains of error in admitting the testimony of Steve Perry, after plaintiff had closed his evidence, over the objection of defendants, because said testimony was not in rebuttal and should have been put in chief. This court has frequently decided that it is a matter of discretion with the trial court whether it will or will not admit testimony at any stage of the case; and when such testimony appears to be pertinent and relative, we see no error in admitting the same, particularly as in this ease the plaintiffs in error made no motion to continue the case, or made any suggestion to the court of their inability to meet the testimony of this witness.

6. The 8th ground of the motion alleges as error that the court did not charge the law of contributory negligence. There was no request on the part of plaintiffs in error for such a charge to be given by the court, and we doubt much whether such a charge should have been given, even had it been requested, under the facts of this case. So we think the court committed no error in omitting to charge the jury as specified in this ground. Judgment affirmed.