35 S.E.2d 206 | Ga. Ct. App. | 1945
1. Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous.
2. Where certain evidence is excluded over objection, but the record contains similar evidence establishing the fact which it is sought to establish by the evidence which has been excluded, such exclusion will not constitute reversible error, even if the exclusion was erroneous.
3. A statement to the jury in counsel's closing argument of the names of the parties to the cause does not constitute such an improper or prejudicial statement as to warrant the granting of a mistrial, and where the court in its discretion refuses the grant of a new trial, the judgment will not be interfered with unless it is apparent that a mistrial is essential to the preservation of the right of fair trial.
4. Where there was substantial evidence in support of the plaintiffs' allegations to authorize the finding of the jury in favor of the plaintiffs, such finding will not be interfered with by this court.
2. In ground 2 of the amended motion for a new trial, the plaintiffs in error contend that the court erred "because the following material evidence offered by movants was illegally withheld by the court from the jury, against the demand of movants: H. N. Smith, a witness for the defendants and their engineer, was being examined on direct examination by counsel for defendants. `Q. You saw him when you were in about 25 feet of the crossing, and he looked as if he was going to stop? A. Yes, sir. Q. And he changed his mind apparently? A. It seemed he thought he had time to beat me across the crossing; that is the way it looked.'" Assuming, for the sake of argument, that Smith's statement was admissible and was not prejudicial, in that it would tend to leave the impression that Whiting's action in proceeding across the crossing was daredevil and sportive, and that he was recklessly racing the train instead of proceeding across the crossing in an effort to protect himself from the impending collision — the exclusion of this evidence was harmless, in that there was other uncontradicted proof of the fact that Whiting had started to stop at the crossing, but had in effect changed his mind and proceeded across, which was the fact that counsel for the plaintiffs in error sought to elicit from the witness, Smith. Whiting makes this admission himself: "I was going between 20 and 25 miles an hour when I first heard the bell. I must have continued at the same speed at the time of the collision. I just taken my foot off the accelerator, but I did not put on brakes. I started to touch the brakes, and then I put it back on [the accelerator] and continued across." It was unnecessary, therefore, for counsel to prove this fact again by one of the witnesses for the defense; the plaintiffs in error had full benefit of this fact, and we are of the opinion that the plaintiffs in error were not harmed by the exclusion of this testimony. General Chemical Co. v. Porter,
3. It is the contention of ground 3 of the amended motion for a new trial that " the court erred in failing to grant a mistrial on *774
motion of movants on account of certain improper remarks made by one of the counsel for the plaintiffs, before the jury and in the presence of the court and the jury. Said remarks were made during the argument of opposing counsel, and said motion was made by the movants at the time the remarks complained of were made and before the verdict of the jury was rendered, and said remarks were not referable to any evidence introduced upon the trial of the case. Said remarks were as follows: `I call your attention, gentlemen of the jury, to the fact that this case is not brought by Mr. Whiting, but is brought by these two children of John Roy McCamy. I also call your attention to the fact, gentlemen of the jury, you will notice that there are several railroad companies that are being sued in this case and they are all defendants named in the case and that there is an arrangement between the defendants for their operation.'" At this point in his argument to the jury, counsel for the defendants in error was interrupted by counsel for the plaintiffs in error and a motion was made for a mistrial. We are aware of no rule of law in this State which prohibits counsel in their argument to the jury from stating the names of the plaintiff and the defendant in the case before the jury, nor are we able to comprehend in what manner such a statement of the names of the parties could be said to have prejudiced the rights of either party. Counsel for the plaintiffs in error did not allow counsel for the defendants in error to proceed in his argument beyond this simple statement of the names of the parties, before he moved for a mistrial, and from this statement alone we can find no cause to warrant the granting of a new trial. It will be observed from the record that in his argument to the jury counsel for the plaintiffs in error had stated that the case should be tried as though Whiting were the plaintiff, since its defense was based upon the doctrine of attributable or imputable negligence. It is obvious, therefore, that this statement by counsel for the plaintiffs in error was provocative of the statement by counsel for the defendants in error, and it was natural that he should have made such a reply; nor did the statement complained of deprive the plaintiffs in error of their defense of imputable negligence; or, even assuming for the sake of argument that it tended to do so, this tendency was admirably cured by the charge of the court on the question of attributable or imputable negligence. The Supreme Court, inManchester v. *775 State,
4. The general grounds of the motion for a new trial set forth no error requiring a reversal of the judgment. There is substantial evidence in support of some of the defendants in error's allegations of negligence, and uncontradicted evidence in support of the allegation as to the decedent earning from $6000 to $10,000 per year at the time of his death, and we are unable to say as a matter of law that the verdict is contrary to the evidence, or without evidence to support it, or in any manner excessive.
Judgment affirmed. Sutton, P. J., and Parker, J., concur.