56 Ga. App. 215 | Ga. Ct. App. | 1937
Lead Opinion
Mrs. Florence Hamby and her husband, J. F. Hamby, brought suit against Alabama Great Southern Railway Company. Mrs. Hamby sued for damages for personal injuries, including pain and suffering, alleged to have been caused by a large tap or nut which was hurled with great force from a passing locomotive engine belonging to the defendant, and which hit her in the leg after she had crossed the track of the defendant at a public crossing and was approximately twenty-five feet from the engine as it passed. Mr. Hamby sued to recover damages for loss of the services of his wife. It was alleged in both petitions that the defendant was negligent in the operation of its train, in that parts of the locomotive or tender were defective “to the extent that the nut which struck plaintiff wras permitted to become or be loose and be hurled with great force and violence so as to strike plaintiff, which defect was known to the defendant company, its officers, agents, and employees, or by the exercise of
The court charged the jury, that "where something unusual happens to a defendant’s property over which he has control, and by such extraordinary occurrence a plaintiff [is] injured, an inference may arise that the injury was due to the defendant’s negligence;” and that “the inference may in some cases arise, from an unexplained occurrence which has worked an injury to another, that the defendant, who had in charge the instrumentality which was the direct cause of the injury, was guilty of negligence, [and] may or may not be drawn by the jury; but,
Since no issue was presented by the evidence respecting .the alleged negligence of the defendant, but the only issues presented-being whether or not Mrs. Hamby was injured by the operation of a locomotive or cars of the defendant, that her injuries were as severe as claimed, and also as to the amount of the husband’s loss of services of the wife, resulting from the alleged injury to her, and since it did not appear that the defendant had within its power any witnesses, other than the witnesses introduced, who could have explained or disproved the claim that Mrs. Hamby was injured by the operation of the defendant’s locomotive or cars, or the claims as to the severity and monetary value of the injuries and loss of the wife’s services to her husband, it was error prejudicial to the defendant to charge the jury as follows: “Where a party has in its power witnesses to explain an occurrence, or to disprove a fact, and fails to produce such witnesses, the presumption arises that the evidence of such witnesses would be hurtful to the party failing to produce such witnesses.” Schnell v. Toomer, 56 Ga. 168; Central of Georgia Railway Co. v. Bernstein, 113 Ga. 175 (5) (38 S. E. 394); Shields v. Georgia Railway & Electric Co., 1 Ga. App. 172 (2) (57 S. E. 980). Code, § 38-119.
It is not necessary, to pass on the ground of the motion for new trial which excepts to the failure of the judge to declare a mistrial on motion of the defendant, on the ground that counsel for the plaintiff, in his argument to the jury, argued and invoked the rule in § 38-119, supra. The court erred in overruling the motions for new trial.
Judgments reversed.
Concurrence Opinion
concurring specially. I do not concur in the ruling announced in division 1. I concur in the judgment of reversal solely on the ruling announced in division 2. I do not construe the charge referred to in division 1 as an expression of