The plaintiff sued the defendant railroad companies for damages for the tortious homicide of her husband. The original petition alleged that he was killed while, “in the exercise of due care, [he] was walking over Johns street public crossing, which is a public street crossing in the city of Atlanta; ” that “ the defendants negligently failed to have a watchman at said crossing, said train was negligently running forty miles per hour, and negligently failed to check and keep checking as said crossing was approached, and negligently failed to keep any lookout ahead, nor did they blow any whistle or ring the bell or give any other signal, and 'said defendants further violated a valid ordinance of Atlanta, restraining the speed of trains to four miles per hour over crossings.” During the trial the plaintiff offered to amend her petition by alleging that, “ without reference to whether the deceased was killed on or off the crossing, . . he was visible on the track in the direction from which the train was coming at least 300 yards, and after the danger of the deceased became, or in the exercise of ordinary care should have become, apparent to the defendants’ employees in charge of said train, such employees failed to exercise ordinary care, failed to give warning, failed to check or slow up, and thereby were guilty of gross and wanton negligence.” The defendants objected to the allowance of this amendment, “on the grounds, first, that it set up a new cause of action; second, that it did not definitely set out the location of the deceased at the time of the homicide, whether on the crossing or off the same; and third, if off the crossing, it set forth no cause of action.” The court overruled the objection and allowed the amendment, to which ruling the defendants excepted pendente lite, and error is assigned upon such ruling. Under the rule laid down by this court in Harris v. Central Railroad Co., 78 Ga. 525, the amendment did not introduce a new cause of action. In that case the substance of the original petition, as stated by Chief Justice Bleckley, was, “that the plaintiff’s husband was killed by the running of the defendant’s train, locomotives, cars, and other machinery; his death was the result of no negligence on Ms part, but was due to the negligence of the defendant; it was the result of failure by the defendant to use any of the precautions required of railroad companies at public
The amendment which this court held was properly allowed in the Karris case alleged: “ The defendant failed to furnish a safe way for egress from the cars, in this : It placed an iron rail around the platform of a car and did not provide steps to another car next, to the former, nor proper rails for the protection of persons on the steps. A number of persons were upon the latter car bidding-friends good-bye; they were thete by permission, express or implied, of the defendant, and were negligently urged by the defendant from the car, and whilst they were getting from it the train started, the conductor not allowing sufficient time for those persons to descend, nor did he stop the train or use any care to prevent an accident, though he saw a crowd endeavoring to get off, and saw that the plaintiff’s husband, in climbing off the platform, had fallen between the cars and was hanging to one of the posts of the railing.” Surely if that amendment, which so completely changed “the allegations, in the declaration touching the specific acts of negligence and the manner of causing death,” was permissible, the amendment in the present case, which does not so radically change the original allegations touching these matters, was properly allowed by the trial court. The principle ruled in the case cited is stated in the headnote thereto as follows:' “ The cause of action alleged being the homicide of plaintiff’s husband by means of the defendant’s negligence, the allegations in the declaration touching the specific acts of negligence and the manner of causing death may be varied or added to by amendment during the progress of the trial, so as to adapt the pleadings to the evidence in all its aspects.” This is what the plaintiff sought to do by the amendment in the case now under review. She alleged, and introduced evidence for the purpose of proving, that her husband was negligently killed on Johns street-crossing, in the city of Atlanta, by the running of the defendants’ train. The defendants, while denying that their train killed the plaintiff’s husband, contended that the evidence showed — and they sought to prove — that he was not killed on the street-crossing, but some distance beyond it. To meet this theory and evidence, the
2. “During the progress of said trial, and after the evidence had been introduced and one argument had from the plaintiff’s and defendants’ counsel each, and one argument each remaining with an allowance to each of more than one hour, at twelve o’clock, the hour of recess for the day being two o’clock p. m., one of the jurors, O. E. Wingate, privately announced and exhibited to the court a telegram showing that the parent of the juror’s wife had died, and that it would be necessary for the said juror to take his wife to Macon, Ga., and to do so [he] would have to leave the city at four o’clock p. m. that day, that his presence with her was necessary for consolation and protection, and that she was feeble and entirely dependent upon him. Whereupon the defendants moved the court to declare a mistrial, which motion the court overruled and refused to excuse the juror, and the defendants then .under the circumstances consented to the discharge of the juror and that the case proceed with eleven jurors.” To the overruling of the motion to declare a mistrial, for the reasons indicated, exceptions pendente lite were filed, and error is assigned upon such ruling. We think* under the circumstances, the court should have excused the juror for providential cause, and then declared a mistrial, unless counsel voluntarily agreed that the trial should proceed before the eleven remaining jurors. But the defendants lost the right to except to the action taken by the court, by unconditionally consenting that the juror, Wingate, should be discharged and the trial proceed with the eleven jurors. By this consent the defendants waived whatever error there may have been in the rulings of the court. Counsel for the plaintiffs in error cite the case of Simmons v. State, 88 Ga. 272. The ruling in that case does not sustain the contention that the plaintiffs in error, after unqualifiedly consenting for the trial to
3. William Robinson testified by deposition for the plaintiff, among other things, that, at the time the plaintiff’s husband was killed, he, the witness, worked for the Southern Railway Co. After these depositions were taken, the witness testified in a case brought by himself against the Southern Railway Co., and the defendants in the present case contended that, in the course of this testimony, he testified that he did not work for the Southern Railway Co. on a date which was the same as the date when the plaintiff’s husband was killed. The defendants, for the purpose of impeaching the testimony of this witness, offered to prove by the official stenographer what the witness had testified to in his case against the Southern Railway Co. On motion of the plaintiff’s counsel this evidence was excluded, upon the ground that no proper foundation had been laid for its introduction. One ground of the motion for a new trial alleged error in this ruling of the court. It is unnecessary to consider the materiality of the rejected evidence for the purpose for which it was offered. The Civil Code, § 5292, which lays down the rule in reference to the introduction of contradictory statements for the purpose of impeaching a witness, provides: “Before contradictory statements can be proved against him (unless they are written statements, made under oath in connection with some judicial proceedings), his mind should be called with as much certainty as possible to the time, place, person, and circumstances attending the former statement; and if in writing, the same should be
4. Another ground of the motion for a new trial is: “ Because-the court erred in admitting, over the objection of these defendants,, the testimony of the plaintiff herself, as follows: ‘ Q. When your husband would go out home, what was his route across the railroad ? Have you ever been with him ? A. I certainly have. Q. What was his route across the railroad ? A. I will tell you exactly the way we .go. We go across this field to those tracks there at the railroad, and across the railroad at that crossing;’ meaning Johns street crossing.” This evidence was “ objected to as hearsay and immaterial.” This testimony certainly was not hearsay, and it is not necessary to determine whether it was, or was not, material,, because if it was, as alleged, immaterial, then its admission by the-court affords no cause for a new trial. “Admitting illegal testimony which is wholly immaterial is no sufficient ground for a new trial.” Williams v. Hamilton, 30 Ga. 968. “Neither the rejection nor the admission of immaterial evidence is cause for a new trial.” Thompson v. Thompson, 77 Ga. 693. See also Lindsey v. Lindsey, 14 Ga. 657; Montgomery v. Trustees, 70 Ga. 39 (4).
. 5. We have covered all of the grounds in the motion for a new trial requiring special mention; other grounds are sufficiently referred to-in the headnote. Judgment affirmed.