Hawk v. Western & Atlantic Railroad

George, J.

1. The rule that the first grant of a new trial will not be disturbed except where the verdict is demanded by the evidence is applicable to the first grant of a new trial to the defendant in the action, *396 although a new trial had been previously granted the plaintiff in the same case. Jordan v. Dooly, 129 Ga. 392 ( 58 S. E. 879 ) ; Butler v. Sansone, 138 Ga. 767 ( 76 S. E. 54 ).

Decided June 27, 1917. Action for damages; from Whitfield superior court—Judge Fite. December 16, 1915. W. G. Martin, M. G. Tarver, for plaintiff. Tye, Peeples & Tye, Maddox, McGamy & Shumate, for defendant.

2. The order granting the new trial is general on all the grounds of the motion. One ground is based upon the result of an experiment made by certain persons, at the request of the court, after the trial of the case. The bill of exceptions, duly certified by the presiding judge, recites that the result of this test or experiment was considered by him in passing upon the motion. This ground should have been stricken from the motion. Its consideration was improper. But the fact that the presiding judge considered irrelevant, immaterial, and improper matter, in passing upon the motion, does not alter the well-established rule announced above.

3. Since the case is to be retried, this court will not pass on the sufficiency of the evidenee further than to say that it did not demand a verdict for the plaintiff.

4. The demurrers, general and special, to the plaintiff’s petition, were properly overruled.

Judgment affirmed on both main and cross-bill of exceptions.

Wade, O. J., cmd Luke, J., concur.