McIver v. Georgia Southern & Florida Railway Co.

108 Ga. 306 | Ga. | 1899

Lumpkin, P. J.

1. As to the merits of this case, we fully agree with the trial judge in holding that, under the law and the facts as disclosed by the record, there could be no lawful recovery in the plaintiff’s favor. It was, therefore, not erroneous to sustain the general grounds of the motion for a new trial filed by the railway company. The law, as laid down in section 5585 of the Civil Code, being that the first grant of a new trial will not be disturbed by the Supreme Court unless “the law and facts require the verdict,” a judgment granting a first new trial will certainly be affirmed when it plainly appears that the verdict which the court set aside was wrong.

2. This motion for a new trial also complained of certain charges which the court gave to the jury, and also of a refusal to charge a written request. The company by a cross-bill of' exceptions assigns error upon the overruling of the special grounds of its motion. The charges just referred to were, in the abstract, correct propositions of law, and we do not understand that they are excepted to as being otherwise. Counsel for the company insisted, however, that these charges were erroneous because the court failed to give in connection therewith a certain instruction which counsel contended was pertinent and applicable to the case. We do not think this is the proper way in which to make a question of this kind. If counsel desired any particular principle of law to be given in charge, they should have submitted to £he court an appropriate request in writing. Or, if the principle in question was one necessarily involved in the trial, they ought, independently 'of other matters, to have excepted to the failure of the judge, even though not so requested, to charge the jury thereon. In point of fact, the present record discloses that the court did in its charge substantially give to the jury the instruction which counsel for the railway company contend was omitted.

As to the written request to charge, there was no error in refusing to give it, for it assumed, that the deceased was a trespasser, whereas there was evidence warranting a finding that he was a licensee. Furthermore, it appears from the record that the judge in his charge did instruct the jury, in substance, that the deceased was to be regarded as a trespasser; so the company has no just cause of complaint that the request presented by it was not also given.

Judgment on both bills of exceptions affirmed.

All concurring.