Allen v. Davis

Bloodworth, J.

In the light of all the facts of this case and when the entire instructions given the jury are considered, none of the instructions complained of in the motion for a new trial require a reversal of the judgment. Some of these excerpts contain inaccuracies of expression, but these are not of such materiality as to make it likely that they caused the jury to render a verdict different from what they would have rendered had the instructions been absolutely free from criticism.

Mrs. Joanna Allen sued the director-general of railroads, alleging that her son, Hugh Allen, was killed in a collision of trains between Bainbridge and Climax. The motion for a new trial contains two grounds based on alleged newly discovered evidence. The first of these is absolutely lacking in merit. The alleged newly discovered evidence set out in the second of these grounds is that of G. H. Baggett, who, more than five years after the death of Hugh Allen, makes affidavit that he was near the deceased in the depot at Bainbridge and saw him buy a ticket to Climax. However, J. B. Curry, a friend of the deceased, who went to Bainbridge with Allen and who was at the depot at Bainbridge with him until the train going to Climax came, and who boarded that train and was on the train when the collision occurred in which Allen was killed, and who was a witness for the plaintiff at the trial, testified, on the hearing of the motion for a new trial, that he knew Baggett, and that he did not see him that night, and that if Baggett had been with deceased, he would have known it. In addition, about a dozen witnesses, all of whom had known Baggett for years, each made affidavit that Baggett's reputation was bad, and that the witness would not believe him on oath; more than one of them swearing that Baggett was an habitual liar, was so recognized by those who knew him, and was known in the county as “lying George Baggett.” With these facts, this array of witnesses against him, it would be folly to grant a new trial on this ground. ’ Before a new trial should be granted upon alleged newly discovered evidence, the new evidence should be such as probably would produce a different verdict upon another trial. The evidence of Baggett is not of that character.

Under the preliminary showing made as to the inaccessibility of witness Alsobrook, this court will not hold that the trial court abused its discretion when it allowed the evidence of this witness, taken on a former trial of the case, to be read to the jury. Whether or not a witness is “inaccessible,” in the sense in which that word is used in section 5773 of the. Civil Code (1910), is, “under all the circumstances of the particular case, a question for determination by the trial court in the exercise of a sound discretion.” Atlanta & Charlotte Air-Line Ry. Co. v. Gravitt, 93 Ga. 369 (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. E. 145); Ga., Fla. & Ala. Ry. Co. v. Bittick, 142 Ga. 191, 192 (82 S. E. 548); Taylor v. State, 155 Ga. 785, 793 (6) (118 S. E. 675); Swift v. Oglesby, 8 Ga. App. 540, 542 (2) (70 S. E. 97).

There was no error in allowing in evidence that portion of the “ticket-book” of the railroad which showed the number of sales of tickets from Bainbridge to Climax on December 28th and 29th, 1918. Even should we concede that the last ground of the motion for a new trial is in proper shape for consideration, still, when all the pleadings; all the facts, and the entire charge of the court are considered, a new trial should not result from the alleged error of which complaint is made in this ground of the motion.

There was evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.