Central Railroad & Banking Co. v. Gamble

Hall, Justice. 1. The position taken by the plaintiff’s counsel, by -which he insists that his agreement with the opposite party to allow him to use the record copy of the lease of the Southwestern to the Central Railroad, and dispensing with the production of the original on the trial, was an admission of the fact that the Central was operating and managing the other road under a contract of lease, is not tenable. It was not intended by the parties that this agreement itself should go in evidence to the jury, and for that reason we conclude it was not relied on to prove that the relation of lessor and lessee existed between the two railroads when the casualty for which the suit was brought occurred. As before remarked, it had no other effect than to dispense with the production of the original lease on the trial. Paterson vs. Collier, 75 Ga. 419. But for the purpose of maintaining his action, it was wholly unnecessary that the plaintiff should assume this position. The declaration contained two counts, one setting forth that the Central was running the Southwestern road under a lease, and the other that it was using, controlling and running it, without specifying the form of contract or the agreement under which it was so running, and controlling it. There was evidence of the fact that it was using and controlling the Southwestern Railroad, and this sustained the latter count, and was sufficient, without further proof, to maintain the action. 2. The declaration alleges that the injury complained of was done in the county of Talbot; and while the proof upon this question is not direct, yet it establishes that it occurred between two points — Bostick and Geneva — both located on the line of the railroad,, in that county. At each of these points there are post-offióes, and we have held that the court will take judicial notice of the fact that they are located in the county. Central Railroad vs. DeBray, 71 Ga. 406. But there is no contention as to the [588] fact that the venue is properly laid in the county where the injury was done. Independent of this, however, if the suit had been improperly located, it would have been the duty of the defendant to have pleaded to the jurisdiction, and having suffered the trial to proceed without that plea, the jurisdiction was waived. Unless the jurisdiction had been properly denied by plea, the venue, as laid in the declaration, need not have been proved. 3. On the trial of this case, the defendant read in evidence certain interrogatories of C.M. Pope, sued out at its instance; this witness had been previously examined by the plaintiff, and his answers to the plaintiff’s Interrogatories, read on the former trial, were now offered to contradict and impeach the testimony taken under the commission sued out by the defendant. To this the defendant objected, and showed, for cause of objection, that the plaintiff was present when the answers of the witness to his own interrogatories were taken, and made suggestions as to what he should state in reply to the questions as propounded by the commissioners. The objections were overruled, because no written notice of the same was given to the opposite party or brought to the attention of the court prior to the commencement of the'trial, and they were offered for the first time pending the hearing. It further appeared that the defendant had been apprised of this objection to the interrogatories before the trial commenced. At this point a motion was made, on the ground stated, to suppress the testimony. The court held that it came too late; and we are of opinion that there was no error in so holding. Code, §3892, and citations. 4. Error is alleged in the ruling that a tales juror, R. H. Turner, was incompetent to serve on the trial of this case. There is no evidence in the record bearing upon the qualifications of the juror; his name does not appear, either on the regular panel, or on the list of the tales jurors. Besides this, the exception does not state wherein the court erred in rejecting the juror, or why he was disqualified, [589] and the objection is altogether too vague and uncertain to authorize this court to consider it. 5. There have been two trials of this case, in each of which verdicts were found for the plaintiff. The evidence as to the nature and extent of the injuries received by the plaintiff ánd the cause of these injuries, is directly conflicting. That of the defendant makes it appear that they were trivial, from whatever cause they arose, while, on the other hand, the plaintiff’s evidence shows that they were of a serious and permanent character, and attributes their origin to the derailing of the car in which he was a passenger. While, therefore, the verdict was not absolutely demanded, yet it is sustained by the evidence, and the judge does not appear to have abused his discretion in refusing to grant a new trial, but to have exercised it prudently and cautiously. Judgment affirmed.