Atlanta & West Point Railroad v. Haralson , 1909 Ga. LEXIS 198 ( 1909 )

Lumpkin, J.

(After stating the foregoing facts.)

On most of the rulings contained in the headnotes no elaboration is necessary. Complaint was made in regard to the charge of the court on the subject of permanent diminution of capacity to labor, as constituting an element of damages. This point was raised by several grounds i of the motion, two of which will be sufficient to be set out. He charged, “If you find from the evidence that the plaintiff was injured, and that on account of such injuries the plaintiff’s capacity to work has been permanently lessened, then the plaintiff could recover therefor.” He refused a request to charge as follows: “Before the plaintiff can recover anything, as dam-

ages, on account of lessened ability to labor, he must show by the evidence that his capacity to labor has been -lessened, and the pecuniary value thereof,” etc. This question is practically ruled in City Council of Augusta v. Owens, 111 Ga. 464 (8). If a plaintiff seeks to recover for pecuniary losses resulting from lost time or permanent diminution of capacity to labor and earn money, he should introduce evidence on which to predicate such a recovery. But it has been held in this State that permanent diminution of capacity to labor is an element of damages for the consideration of the jury, in determining the amount of. such recovery, along with evidence as to pain, suffering, disfigurement, or the like, although no pecuniary value is proved by the evidence. It has been said that the loss of capacity to work is in the nature of pain, though no pecuniary loss be shown. Powell v. Augusta and Summerville R. Co., 77 Ga. 192, 200; Atlanta Street R. Co. v. Jacobs, 88 Ga. 647; Metropolitan Street R. Co. v. Johnson, 90 Ga. 500, 508; Brush Electric Light and Power Co. v. Simonsohn, 107 Ga. 70.

It was contended, that, as the presiding judge mentioned permanent impairment of capacity to labor separately from his charge touching pain and suffering generally, the jury might have been misled into thinking that they might duplicate damages for pain and suffering; and that if lessened capacity to labor is an element of damages without regard to its effect on the plaintiff’s capacity to earn money, it falls within the element of pain and suffering, and is not an independent element of damages. While the expression, "He is entitled to recover whatever the evidence may show,” employed in one portion of the charge touching diminution of capacity to labor, may not have been an entirely apt mode of expression, yet, when taken in connection with the whole charge on the subject, we do not think that the charge of which complaint was made could have confused or misled the jury. They were .distinctly instructed that a right to recover on account of permanent impairment of capacity to labor, in the absence of proof as to earning capacity, did not authorize a recovery of anything on the latter ground, or for loss of time, that the plaintiff could recover nothing on those grounds, and that in arriving at their verdict they would allow nothing for loss of power or diminished capacity to make money or for loss of time, there being no evidence to authorize it. While the judge did not distinctly classify impairment of capacity to labor as being pain and suffering, under the ruling in Atlanta Street R. Co. v. Jacobs, supra, we can not say that his charge on the subject was such as to require a new trial. In so far as the requests on this subject stated a correct principle of law, they were covered by the general charge. The request set out above did not correctly state the law.

If a railroad company places two conductors in charge of a train, or two agents having charge and with authority to direct passengers to alight, whether both be called conductors or not, within the sphere of their respective duties in this regard the company is bound by the conduct of each of them. In Coursey v. Southern Ry. Co., 113 Ga. 397, 300, it was held that a person who was injured in an attempt to leave a moving train, on command of the conductor, or the person in charge, could not justify such action on his part without showing that the person who gave the command to alight was in fact the conductor or some other official of the railroad company having authority so to direct. It was also held that the fact that the person who gave the direction to the passenger carried a lantern on his arm and took up tickets from the passengers was sufficient to make out a prima facie case of his position. The grant of a nonsuit was reversed in that ease, and a verdict subsequently rendered in favor of the plaintiff was allowed to stand. Southern Railway Co. v. Coursey, 115 Ga. 602. It is the duty of a carrier of passengers to provide proper agents for their cars. The conductor is generally in charge of the train. If an excursion train stopping at frequent points along the route is composed of so many coaches and is so crowded with passengers that the conductor can not attend to his usual duties in connection with them, and authorizes another employee to perform the duties of a conductor with regard to certain coaches and the passengers therein, while he looks after other coaches, as to a passenger dealing with such employee in connection with the duties so assigned to him, and in reliance upon his being the conductor, he may be treated as such quoad hoc. Of course the mere belief on the part of a passenger that a certain agent is the conductor does not make him so or prove the fact. But where the question involves the diligence or negligence of the passenger in acting under direction "of such employee, his reliance upon the authority of the latter is a matter for the consideration of the jury. Taking the charge on this subject complained of in connection with its context, we do not think there was any substantial error in it, if any inaccuracy at all.

While the evidence was conflicting, it was sufficient to authorize the verdict, and there was no error in overruling the motion for a new trial. Lake Erie & Western Ry. Co. v. Fix, 88 Ind. 381 (45 Am. R. 464).

Judgment affirmed.

All the Justices concur.