Seaboard M'f'g. Co. v. Woodson , 98 Ala. 378 ( 1893 )

COLEMAN, J.

It is unnecessary to consider the questions growing out of the contention as to whether the third count of the complaint was amended before the trial. The case must be reversed upon other grounds, and if the counts, to which demurrers were sustained, had not been amended, which is not decided, this objection can be obviated on another trial. Assuming that the third count of the complaint presented a triable issue, we find no error in that portion of the general charge predicated upon the third count to which an exception was reserved. The record informs us that the court as a part of its general charge, and in connection with the portion excepted to, instructed the jury, that if the engine was defective as charged in the complaint, and plaintiff knew of its defective condition and failed or neglected to inform the defendant or some servant of the defendant, superior to himself in its service or employ, then the plaintiff could not recover, unless the jury believed from the evidence that plaintiff was aware that the defendant or some servant of the defendant in its service or employ superior to the plaintiff, knew of the defective condition of the engine and that the burden of proving all these facts rested upon plaintiff. Construing that part of the general charge excepted to, in connection with the proposition of law here asserted, and the evidence, we think it free from error. The liability of the defendant, upon the facts predicated, were conditioned also upon the further fact that plaintiff was not guilty of contributory negligence.

When the case was before us on a former appeal (94 Ala. 143,) it was said, “Unless there had been a reasonable opportunity to effect a remedy, it could not be said that the failure to do so was negligence. The defendant must have had sufficient time to remedy the defect, after its discovery before it could be chargeable with negligence in failing to effect such remedy. Mere knowledge without the opportunity to act upon it, would not constitute negligence.” Charge No. 1, given for plaintiff ignores* the principle of law here asserted and fixes liability upon defendant from a failure to remedy the defect after notice without regard to time of notice of the defect or reasonable opportunity to remedy it. Charge No. 2 given for plaintiff asserts a correct proposition of law. If the jury were satisfied from the evidence that the defendant “through negligence and want of reasonable care and caution furnished an engine that was out of repair, as charged in the complaint, and that by reason of such defect, the plaintiff, while using ordinary care, and in the discharge of his duty as fireman in the service of the defendant was injured,” then the jury should find for the plaintiff It could not be said that plaintiff exercised ordinary care, if the contention of the defendant was correct, that plaintiff with a knowledge of the defect in the engine and knowing also that the engineer had left his place on the engine, without any one in charge, the plaintiff exposed himself to the danger of having the car to move, while he was under it. The defendant might have requested an explanatory charge, if he considered the charge one calculated to mislead the jury. We think charge No. 3 is erroneous, in so far as the court instructed the jury that if the injury impaired the plaintiff’s power to earn money in the future the amount of compensation “was, from necessity, left to the sound discretion of the jury not to exceed the amount claimed in the complaint.” Whether an employee’s wages willbe increased or diminished, in the future, or whether he will certainly die sooner or later, is not a fact of positive proof, but no sound rule of right and justice, will permit a jury in assessing damages to be paid by one person to another as compensation for a pecuniary loss, to reach a conclusion of the amount to be paid, from mere-conjectures or without regard to proper data furnished as evidence. The law fixes the burden upon him who claims damages from another as a compensation for a pecuniary loss, to furnish the facts necessary to ascertain the extent of his loss with reasonable certainty, and failing in this, he is entitled to no more than nominal damages. It is upon this principle that it is permissible and proper to introduce evidence of the age of the person, mortuary tables to show the probable ‘duration of life, the' business habits, industry and sobriety, earnings, skill and whatever facts may conduce with reasonable satisfaction to aid the jury in arriving at what would amount to a just and fair compensation for the damage or loss sustained.—L. & N. R. R. Co. v. Orr, 91 Ala. 548.

In many States the rule is thus declared; “In estimating the amount of damages to be given for permanent injury, the elements to be considered áre, the former occupation of the plaintiff, the amount of money he received from it, the extent to which the act of the defendant has impaired his capacity to perform the duties of that or any other calling for which he is fitted.—5 Amer. Encyc. note 1, p. 41; McLaughlin v. Cory, 77 Pa. St. 109; Hall v. Fon duLac, 42 Wis. 274; Chicago v. Jones, 66 Ill. 349; Joliet v. Conway, 119, Ill. 489; Wade v. Leroy, 20 How. U. S. 34.

Doubtless the court was influenced by the case of Morris v. The C. B. & Q. R. Co. in 45 Iowa, 29. The facts in that case are not repórted, and it may be that all the necessary data were before the jury on the trial, but even with this concession, we think the word “discretion” calculated to convey to the jury the impression that they were not confined to the facts and were at liberty to exercise a discretion independent of the evidence. If the word “judgment” had been substituted for “discretion” the charge might have been unobjectionable. In computing compensation for loss on account of future earnings it is proper to introduce evidence of the age of the party complaining, at the time of the injury.. In assessing compensation for a pecuniary loss the jury are not at liberty to disregard the facts, and assess compensation at discretion. As further confirming our conclusion we cite the case of Hawes v. Stock Yard Co., 103 Mo. 60; s. c. 15 S. W. Rep. 751.

The allowance of punitive damages, rests upon a different consideration, and is intended to conserve the jrablic welfare, and tlie law having this end in view, under prescribed circumstances, vests the jury with large discretionary powers. There was no error in giving charges numbered 7 and 10 at the request of the plaintiff. It does not occur to us that there is much difficulty in the law of. this case, and we deem it unnecessary to comment further on the legal questions reserved in the record. It is for the jury to weigh the conflicting testimony, and declare a correct conclusion from the facts.

Beversed and Bemanded.