Georgia Railway & Electric Co. v. Dougherty

Pendleton, J. 1. The plaintiff in the court below sued for damages which he alleged he received in alighting from a car of the defendant company. He claimed that the car stopped, and that, while he was in the act of stepping from the ear, it suddenly started forward and threw him to the ground. The defendant claimed that the plaintiff stepped from the car while it was in [615] motion and before it came to a stop. The plaintiff supported his theory of the case by his own testimony alone. The defendant supported its theory of the case by the testimony of three witnesses. The judge charged the jury that, under the admissions made by counsel for defendant, it was not necessary for them to consider the question of negligence. It was admitted by defendant’s counsel that the plaintiff would be entitled to recover if he received the injuries in the way he claimed to have received them, but it was contended that he would not be entitled to recover if he received them in the way the defendant claimed he received them. It will thus be seen that there was a plain and sharp contest before the jury between the plaintiff’s theory and the defendant’s theory. The plaintiff’s theory was supported by one witness, —the plaintiff himself; the defendant’s theory was supported by three witnesses. It was therefore necessary to the plaintiff’s recovery that the jury should give more credit to his testimony than to that of these three witnesses. His counsel, in the concluding argument, stated to the jury: “Gentlemen, I don’t know whether any of you are personally acquainted with the plaintiff, but I trust you are.” Counsel for the defendant appealed to the court to stop this line of argument, on the ground, among others, “that the jury could not legally consider their personal knowledge of the plaintiff’s character and reputation.” The court declined to interfere, and counsel for the plaintiff continued: “Gentlemen, I hope that some of you do know Mr. Dougherty. A man’s life, if properly lived, is his most valuable asset. No noble life was ever lived in vain. If there should arise a question of veracity between Gen. R. E. Lee, on the one side, and two or three like myself, and Ben Conyers, and Walter Colquitt, on the other, you would, and ought, to believe General Lee rather than a whole cow pen full of us.” Defendant’s counsel then again moved the court to stop this line of argument, and to grant a mistrial, or caution the jury against giving consideration to their personal knowledge of the plaintiff’s character, ^but the court overruled this motion, and allowed counsel to proceed with the same line of argument. What was the meaning of counsel’s statement to the jury? It was, in effect, this: “In this sharp conflict between Mr. Dougherty and three witnesses, I trust there are some of the jury who know Mr. Dougherty personally; I hope some of you know him; a [616] man’s life, if properly lived, is his most valuable asset, and I feel sure that if you know that life, you will believe him in qjreference to all three of these witnesses who testify against him.” Plaintiff’s counsel say there was no intimation as to whether Mr. 'Dougherty’s character was good or bad. Certainly the jury would not suppose that he was “hoping” that they would know something about the plaintiff that was bad. They also contend that Mr. Dougherty’s character was in issue. Suppose it was; that issue ought to be tried, like all other issues, by the testimony»-. Again, it is claimed that the presumption was that Mr. Dougherty’s character was good. It is quite evident that counsel was not calling the attention of the jury to presumptions; there were three other witnesses who had presumptions in their favor. Something that the other witnesses did not have in their favor was what was needed, and what was evidently being sought after. We are not, however, considering this statement of counsel from any of these standpoints, but from the standpoint that what passed between the defendant’s counsel and the court, in view of the statements made, would authorize the jury to infer that a juror might consider his personal knowledge of the plaintiff’s character. At the common law, a juror was permitted to consider his personal knowledge of the plaintiff, the witness, and the facts. This resulted from the fact that the jury came from the vicinage; for the reason that they were supposed to know the parties, the witnesses, and the facts. In Rogers v. King, 12 Ga. 229, there is an obiter to this effect, which seems to be followed in Anderson v. Tribble, 66 Ga. 584, Head v. Bridges, 67 Ga. 236, and Howard v. State, 73 Ga. 84. These cases were reviewed and overruled in Chattanooga, Rome & Columbus R. Co. v. Owen, 90 Ga. 265 (15 S. E. 853), the court holding that jurors must not consider their personal knowledge of the witnesses. This decision was made in 1892, and was codified by the compilers of the code of 1895, and appears as §5337, as follows: “A juror should not act on his private knowledge respecting the facts, witnesses, or parties, unless sworn and examined as a witness in the case.” In Savannah, Florida & Western Ry. Co. v. Quo, 103 Ga. 125 (29 S. E. 607, L. R. A. 483, 68 Am. St. R. 85), this section is cited to support the proposition that a juror could be introduced as a witness; as is also the case of Chattanooga, Rome & Columbus R. Co. v. Owen, [617] supra. Section 5146 of the Civil Code deals with the question of the credibility of the witnesses, and provides that the juror may consider, along with many other things, in passing upon the credibility of the witnesses, “their personal credibility, so far as the same may legitimately appear from the trial.” The personal knowledge of the juror does not legitimately appear, if the juror is not sworn and examined in the case; and if a verdict is based on that knowledge, in a case in which he is not sworn as a.witness, it is based on that which is dehors the record. When counsel for the plaintiff, in the concluding argument, expresses the hope that some of the jury may have a personal knowledge of the plaintiff, who has been sworn as a witness in his own behalf, and opposing counsel object, on the ground that a juror should not consider his personal knowledge of the plaintiff, the court ought to caution the jury against considering any personal knowledge that any of their number might have as to the plaintiff’s character. 2. The defendant introduced the conductor as a witness. He testified that the car was moving at the time the plaintiff stepped off, and that the plaintiff stated to him as soon as he got up, after having fallen, that the company was not at fault; that he had made a mistake in supposing that the car had stopped when it had not. The plaintiff was reintroduced as a witness,.and admitted that he had a conversation with a conductor, in substance as stated, but testified that it was at another time. He stated that on a former occasion he stepped off the car while it was in motion; and he went into details of the former transaction, to show that it was not the injury for which he was then suing. The defendant objected to all of this testimony, on the ground that it was hearsay, irrelevant, and a self-serving declaration. The court allowed the testimony, and, we think, correctly. It was a difference of recollection between the witnesses as to the dates of the occurrences. If A testified that B made a statement to him on a given date, B would certainly be allowed to admit the statement, but deny the dáte, and to go further and show that he was a thousand miles away on the-date in question, in a distant city, and go into particulars to show that he could not be mistaken about the date. It has been held that a witness may explain a contradictory" statement, by showing that he was drunk when it was made, or that he did not understand the full effect of the English language, or that the scrivener [618] did not correctly take down the statement. Jesse v. State, 20 Ga. 156, supports the last proposition. It would seem to he clear that the witness could deny the date of a contradictory statement and that it referred to the transaction in question, and could state the transaction that it did refer to. Judgment reversed.