7644 | Ga. Ct. App. | Jan 23, 1917
Lloyd Harley, a minor, by his father and next friend, P. L. Harley, brought suit against the Realty Bond and Mortgage Company, alleging, that said company was the owner of a certain house, and lot in the city of Savannah; that P. L. Harley rented an upstairs apartment, and after renting discovered that “the premises were in a fearful state of disrepair,” that window panes were broken out, and that the railing of 'the upstairs balcony had several palings or rails missing, so as to leave open spaces two or three feet wide in the banister; that his father notified the defendant of the condition of the premises, and of the railing in particular, and that this notice was given several times, but the company failed and neglected to. repair the same; that Lloyd Harley, a child of tender years, went through the space in the window where the ¡Dane was missing, out upon the balcony, and fell through the space in the railing to the street below, striking upon his head and thereby depressing the skull and affecting the brain; that the child was knocked unconscious and had to be taken to the hospital, where it remained for two weeks; that after leaving the hospital the said child remained at home in bed for three weeks; that there is a depression in the skull, and said child has been dull and stupid ever since; that said Lloyd Harley was of such tender years as to have been incapable of negligence, and that the injuries to said child were due solely and entirely to the negli
1. Did the evidence authorize the verdict for plaintiff? The allegations in the petition, which are paraphrased above, if true, make a good case. Practically every allegation is proven as stated in the petition. The allegata and probata are in unison. This being true, there is ample evidence to support the verdict. “This court is a court for the correction of errors in law and in equity alone. It has no authority to entertain an assignment of error that the verdict is contrary to the evidence, if there is any evidence at all to support the verdict.” Bell v. Aiken, 1 Ga. App. 36 (57 S.E. 1001" court="Ga. Ct. App." date_filed="1907-01-18" href="https://app.midpage.ai/document/bell-bros-v-aiken-5602162?utm_source=webapp" opinion_id="5602162">57 S. E. 1001). “There is nothing in the evidence in the record to take the case out of the established rule that the verdict of the jury, approved by the trial judge, is conclusive as to all issues of fact.” Atlantic Coast Line R. Co. v. Locklear, 9 Ga. App. 344 (71 S.E. 683" court="Ga. Ct. App." date_filed="1911-06-07" href="https://app.midpage.ai/document/atlantic-coast-line-railroad-v-locklear-5604932?utm_source=webapp" opinion_id="5604932">71 S. E. 683).
2. "Was the verdict so excessive as to clearly show prejudice or bias on the part of the jurors, and thus require this court to set it aside ? There is no proof in the record of prejudice or bias, and nothing therein to indicate it, unless it be in the amount of damages awarded. Before the verdict will be set aside on the ground
It is presumed that when a judge refuses to grant a new trial he has exercised the discretion vested in him by law. In addition to this presumption, the above statement of the trial judge expressly shows that in this case he exercised his discretion; and when this is done, unless this discretion has been abused, the order refusing a new- trial should be final on this point. The jurors who saw and heard the witnesses fixed the amount of the verdict; it was approved by the presiding judge, “and if the court trying the case does not consider the damages excessive, any other court ought to be cautious in doing so.” Adkins v. Williams, 23 Ga. 222 (2). If the verdict in this case does not speak its own doom, the fact that the amount of the verdict may appear large is no reason why it should be set aside. Even though we should consider the verdict in this case “large and generous,” “courts will never, in the absence of -the most satisfactory evidence that the verdict is erroneous, substitute their impressions for the opinion of the jury.” Lang v. Hopkins, 10 Ga. 37 (3). In the case last cited Judge Lumpkin said: “As judges, we are not authorized to substitute our conjectures or apprehensions for the determination of that body on whom the law has devolved the duty of deciding, duly weighing all the circumstances of the ease. . . Judges should be very cautious, therefore, how they- overthrow verdicts given by twelve men on their oaths, on the ground of excessive damages, upon a matter left so entirely to their discretion; especially when the presiding judge before whom the case is tried, and who is presumed to have been familiar with all the facts, has refused to interfere. For this court to order a new hearing, under such circumstances, it must
3. Is there anything in the alleged newly discovered evidence to take it out of the general rule that “ordinarily circumstantial and impeaching evidence is not ground for a new trial?” No. The sole effect of the alleged newly discovered evidence would be to contradict and impeach one of the witnesses for the plaintiff. Civil Code, § 6085; Roy v. State, 140 Ga. 223-224 (78 S.E. 846" court="Ga." date_filed="1913-07-15" href="https://app.midpage.ai/document/callaway-v-beauchamp-5579130?utm_source=webapp" opinion_id="5579130">78 S. E. 846). Besides, this evidence was as to the location of the father of the child at the time of the accident, as related to the opening in the banister through which the child fell, and the location “where the child must have been lying unconscious after said fall,” and based upon an inspection of the premises after the trial. Ordinary diligence
Judgment affirmed.