110 Ga. 85 | Ga. | 1900
The petition for certiorari complained of numerous errors which it alleged the judge of the city court committed upon the trial of this case. In his answer to the writ of certiorari the judge failed to specifically answer most of the allegations of the petition; and as the judge of the superior court could only consider the answer, it not being excepted to and not traversed, there were few points made for his decision. It is now a well-settled rule, that upon the hearing of a certiorari the answer to the writ, when not excepted to or traversed, can only be looked to in ascertaining what'occurred upon the trial in the court below. Warren v. Wilson & Creekmur, 53 Ga. 372; Abridge v. Watertown Steam Engine Co., 77 Ga. 50; Robinson v. Veal, 78 Ga. 300 (2); Gartrell v. Linn, 79 Ga. 700; Knowles v. Coachman, 109 Ga. 356. As to the assignment of error upon the refusal of the judge to give in charge the written request as set out in the petition for certiorari, his answer fails to certify whether or not such charge was requested. The answer stated that certain requests to charge were made, some of which were given and others not, those refused being so marked, signed by the judge and returned to plaintiff’s counsel, and whether the alleged request set out in the petition was refused oj.' not could only be ascertained by examining the original, which was last in the hands of plaintiff’s counsel. Manifestly, therefore, this assignment of error could not be considered by the ^udge of the superior court, as the allegations of fact upon which it was predicated were not verified by'the answer. Nor was the judgé of the superior court bound to consider the various assignments of error upon the different paragraphs of the judge’s charge.
The court did not err in overruling the ground of the certiorari that the verdict for the defendant was contrary to evidence. As we have said, the only evidence that the judge of the superior court could consider was that of O’Neal, the engineer of the defendant’s train. His evidence was amply sufficient to warrant, if not to demand, a verdict in favor of the defendant. Though the railroad company was guilty of negligence, in that its engineer failed to check and continue checking the train when he reached the blow-post established for the crossing upon which plaintiff’s wife was killed, yet after the negligence of the railway company began, and it was apparent to the decedent that the engineer was not checking the train but that it was coming to the crossing at an extremely high rate of speed, it was in her power to have avoided danger from the negligence of the defendant by the exercise of ordinary care. Instead, however, of exercising ordinary care, her conduct, subsequently to the period at
Judgment affirmed.