139 Ga. 300 | Ga. | 1913
Mrs. Hubble, the wife of the plaintiff, was a passenger upon the train of the defendant company. At a certain point on her journey in the State of Alabama the coach in which she was traveling was attached to another train. In making the coupling it was contended that the contact between the two sections of the train was so violent that she was precipitated from her seat, inflicting certain internal injuries. The husband brought suit against the company under an Alabama statute authorizing him to recover for the loss of services and his wife’s society. The defendant denied that the plaintiff’s wife was injured, or that it was negligent. The plaintiff introduced the interrogatories of his wife, to the effect that the two sections of the train were brought together with such force as to throw her from her seat into the aisle, injuring her ribs. Her testimony was very meagre
The circumstance that the instruction is so molded as to be. permissive rather than mandatorjq in directing a jury to give a preference to a certain witness or class of witnesses, does not purge it of its inherent fault. It is given to the jury as a rule for weighing evidence. Considered as a rule it is incomplete; it is deficient as defining any principle of the law of evidence. It simply conveys a permission to the jury that they may believe a particular witness or class of witnesses. It singles out a particular witness or class of witnesses and gives that witness or class undue predominance and favorable mention. Suppose the judge, after charging on the credibility of witnesses, should instruct the jury that they may believe the plaintiff, and stop right off. Would not this convey an implication that the court was of the opinion that the plaintiff was credible, and, as no intimation was made as to the testimony of other witnesses, that such others were not so highly regarded? It will not be contended that it would be in keeping with a fair and impartial administration of the law for a court to single out one witness by name, and instruct the jury that they may believe him. What is the difference between calling a witness by name and designating him by description?
This instruction was particularly harmful in the instant case. There was the sharpest conflict between the plaintiff and the defendant on the two main questions in the case, to wit: whether the plaintiff’s wife was injured at all, and whether the defendant was negligent. The plaintiff’s wife testified that the coupling was made with such force that she was thrown from her seat. The .servants of the railroad testified that the coupling was made in the usual manner, with no more force than was customarily necessary to connect two parts of a train of cars, and that the plaintiff’s wife could not have been thrown from her seat. All of the defendant’s witnesses might be regarded by the jury as interested
Judgment reversed.