Southern Railway Co. v. Clay ( 1908 )

XiUmpkin, J.

1. A petition alleged, that a man went to a railway station to assist his wife to board a train; that he helped her to enter the coach and carried for her a heavy valise, which she Could not well lift; that this was done with the knowledge and consent of the conductor; that a reasonable time was not allowed him to leave the train, and that it started without giving any signal; that the train did not stop the usual length of time at that point; that the plaintiff, while proceeding to alight, reached the first step of the car, expecting that it would be •checked in speed so that he might get off, but instead he was thrown by a sudden and violent jerk to the ground, thereby sustaining injury. An amendment was allowed, alleging, that while the plaintiff was standing on the step, the engineer saw him, and, instead of slacking the speed of the train, so as to enable him to leave it in safety, increased the speed and so managed the engine as to give a violent, unusual, and unnecessary jerk, throwing him to the ground and causing the injury; that the engineer was guilty of these acts with full knowledge that it was the purpose of the plaintiff to alight from the train; that the acts of negligence on the part of the defendant resulted in the plaintiff’s losing his hold and being thrown to the ground. Held, that the amendment did not add a new cause of action.

2. The evidence in this case was sufficient to support the verdict.

3. The question of reopening a ease for the admission of additional testimony is one to be determined in the use of a sound discretion by the trial court, and such discretion will not be controlled unless abused. Frazier v. State, 112 Ga. 868 (38 S. E. 349) ; Standard Cotton Mills v. Cheatham, 125 Ga. 649 (54 S. E. 650).

4. Where the plaintiff made out a prima facie ease, which was vigorously attacked by the defendant, it was not error to permit the plaintiff to introduce additional testimony in support of his ease and in rebuttal of the evidence of the defendant, notwithstanding' the same proof might have been adduced on the first examination. Bryan v. Walton, 20 Ga. 480 ; Rust & Johnston v. Shackleford & Co., 47 Ga. 538 ; Bray v. Latham, 81 Ga. 640 (8 S. E. 64).

Submitted January 14, Decided April 17, 1908.

Action for damages. Before Judge Gober. Cobb superior court. March 23, 1907.

Dorsey, Brewster, Howell & Reyman, Maddox, McCamy & Shumate, and E. P. Green, for "plaintiff in error. E. H. Clay and J. Z. Foster, contra.

Judgment affirmed.

All the Justices concur.