Opinion
42296.
ARGUED SEPTEMBER 7, 1966.
DECIDED OCTOBER 7, 1966. REHEARING DENIED NOVEMBER 1, 1966.
Action under Federal Employers' Liability Act. Ware Superior Court. Before Judge Hodges.
Bennett, Pedrick Bennett, Larry E. Pedrick, John W. Bennett, for appellant.
Thomas A. Parker, Gibson, McGee Blount, Lamar Gibson, for appellee.
1. The rule in Georgia of strict construction against a party testifying in his own behalf, when his testimony is self-contradictory, vague or equivocal, is limited in application to actual testimony at the trial, and will not be extended by this court in this case to include consideration of an extrajudicial statement admittedly made by the party which the other party introduced in evidence.
2. In an action under the Federal Employers' Liability Act 45 U.S.C. § 51) whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Applying this test the verdict for the plaintiff is supported by the evidence and the trial court did not err in overruling the defendant's motion for judgment n.o.v. in accordance with its previous motion for a directed verdict.
ARGUED SEPTEMBER 7, 1966 — DECIDED OCTOBER 7, 1966 — REHEARING DENIED NOVEMBER 1, 1966 — CERT. APPLIED FOR.
This is an action under the Federal Employers' Liability Act ( 45 U.S.C. § 51) to recover damages allegedly sustained at work by an employee of the railroad company on account of the company's negligence. The only evidence to support the allegations of negligence was that of the employee, a switchman, to the effect that he injured his back in throwing a switch which failed to operate properly. On cross examination the plaintiff employee identified a statement given to a company investigator some four years before the trial which he had signed and which tended to contradict some of his testimony, and this statement was admitted in evidence without objection. At the close of the evidence the company moved for a directed verdict, which was overruled, and the jury returned a verdict for the employee. The company then moved for judgment notwithstanding the verdict, and enumerates as error the judgment overruling this motion.
1. The rule is well established in Georgia that the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Western c. R. Co. v. Evans, 96 Ga. 481 ( 23 S.E. 494); Southern R. Co. v. Hobbs, 121 Ga. 428 ( 49 S.E. 294), and many subsequent cases. We cannot agree with appellant's contention, however, that this rule should be applied under the circumstances existing here.
This court has strictly applied the rule and has held that it does not extend to or include a pre-trial deposition ( Branan v. LaGrange Truck Lines, 94 Ga. App. 829 ( 96 S.E.2d 364)); to an extra-judicial affidavit and letter ( Swift Co. v. Hall, 94 Ga. App. 239 ( 94 S.E.2d 145)); to stricken pleadings containing an admission ( Bynes v. Stafford, 106 Ga. App. 406 ( 127 S.E.2d 159)), or to a signed statement taken by an investigator. Tuggle v. Waller, 91 Ga. App. 721 ( 87 S.E.2d 123). In this case we have a statement taken by the company investigator and signed by the plaintiff. Even though such statement in some ways contradicted the testimony of the plaintiff on the trial of the case and was introduced in evidence by the defendant, the stated rule would not aid the defendant under the authorities cited above limiting its application to the actual testimony given by the party witness at the time of the trial. The plaintiff's testimony at the time of the trial was to some extent explanatory of the discrepancies, and taken as a whole was not so contradictory, vague or equivocal as to the basic elements of his case as to invoke the application of the rule in this case.
2. In an action under the Federal Employers' Liability Act ( 45 U.S.C. § 51) there must be a complete absence of probative facts to support the verdict of the jury before reversible error appears on an issue as to the sufficiency of the evidence. The jury, in arriving at its verdict, if there is an evidentiary basis to support its conclusion, is free to discard or disbelieve whatever facts are inconsistent with its conclusion. Lavender v. Kurn, 327 U.S. 645, 653 ( 66 SC 740, 90 LE 916); Dennis v. Denver Rio Grande Western R. Co., 375 U.S. 208, 210 ( 84 SC 291, 11 L.Ed.2d 256).
". . . [W]hether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death." Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 507 ( 77 SC 443, 1 L.Ed.2d 493).
Applying this test the verdict for the plaintiff is supported by the evidence, and the trial court did not err in overruling the defendant's motion for judgment n.o.v. in accordance with its previous motion for a directed verdict.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.