Central Railroad v. Crosby ( 1885 )

Jackson, Chief Justice.

The defendant in error sued the plaintiff in error for the homicide of her husband, who was an engineer on its road, running one of its trains, when the incident occurred. It seems that, in consequence of a feeble engine on one of the freight trains running on the same schedule that the train of which Crosby, the defendant in error’s husband was the engineer, w5,s also running, all the freight trains got out of their regular order, and got on the same schedule on which a passenger train was running; that an accident happened to this passenger train, causing it to lose or break a coupling-pin, and thus delaying it between Gordon and Griswoldville, and that Crosby’s train ran into it while thus delayed, and he was killed.

The jury returned a verdict for twelve thousand dollars; a motion was made for a.new trial; the counsel of plaintiff in error wrote off two thousand dollars, on their own hook; the court refused to grant a new trial, based on this ground and many others, and that refusal on all the grounds is assigned for error here.

1. My own opinion is very decided that no party or counsel has the right, without leave of the court, to alter, in any particular whatever, the verdict returned by a jury pending a motion for a new trial, or when such motion is in contemplation; and that when the refusal of the court to grant a new trial is based in a large degree on that alteration, a new trial should be granted by this court, and the judgment should be reversed on that ground, especially where the case on the facts is very close and the verdict quite large. The other members of the court differ from me on the point, however, holding that such a right exists in a case like this, where a fixed criterion is given for estimating damages, in their judgment, and where, by the reduction of the verdict, the plaintiff in error is not hurt, as they think the evidence shows, and where the judge ratifies what the counsel did by refusing a new trial on that ground.

My own opinion is that, where the presiding judge shows, in the reasons which he gives for refusing a new trial, that he was influenced by this act of counsel, the plaintiff in error was hurt. The probabilities are that the new trial would have been granted by the presiding judge, if the reduction had not been made by the counsel; for he ■hesitated and doubted much about the case, and that hesitation settled into a determination to'refuse the new trial, when he considered this unauthorized reduction, as his opinion in the record clearly shows to my own mind. Therefore I think that the plaintiff in error thereby lost its case; for if a new. trial had been granted below, it would have been affirmed here. Moreover, T think that even the court below has no power to order the reduction of damages in a case like this, or to make the grant of a new trial depend upon such reduction being made; because damages are for the jury to assess, and there are no settled and fixed rules for estimating damages in a tort like this.

The uncertainty of life — the mere expectancy of its duration — the approach of age — the decline of strength— the hazard of so hard a life, so much exposed and worn— the uncertainty of employment — all these and many more considerations move a jury in estimating damages according to law, and no human being can tell what aliquot part is not supported by evidence and ought to be written off.

My brethren, however, differ from me in their views, and when I write the opinion, affirming this judgment, I am but their organ. They hold that this case, on the matter of a fixed criterion for damages is unlike Savannah, Florida and Western Railway vs. Harper, 70 Ga., 119; that in that case there was no fixed criterion for estimating damages; whereas, in this case there is, inasmuch as the Carlisle table of the expectancy of life fixes a recognized criterion for measuring damages when used in connection with' the annual proceeds of the husband’s labor; and therefore they hold that this case is not controlled by that; and that, as damages could be measured by this criterion, and as, in their judgment, the counsel had the right to write off any part of the damage and plaintiff in error could not complain, because not hurt by making the verdict against it less, they hold the plaintiff in error not entitled to a new trial on this ground.

2. Wo all agree that the defendant in error need not allege in the declaration that the homicide was caused by the acts of co-employés. When caused by employés of the company, it is caused by the company. The company, as a corporation, can cause nothing except through and by age'nts, who are all employés, and the allegation that the company, a corporation, did the negligent or careless act which caused, or omitted the diligence which would have prevented, the homicide, is an allegation that its employés were negligent- and careless, and lacking in diligence.

3. So the court is unanimous in the opinion that the presiding judge did not err in overruling the plea of justi. fication, so as to deny the plaintiff in error the right to open and conclude. The plea is not a plea of justification. It only admits the killing ; it admits ■ nothing on which the defendant in error could recover without more ; it does not admit, either that her husband was not at fault, or that the company was, so as to take any burden off the shoulders of (he defendant in error, who, being an employé’s wife, must show either the one or the other, before any recovery can be had, or any presumption be made against the company.

Besides, if it did, it would not be a good plea of justification, because the general issue of not-guilty would admit all the evidence which plaintiff in error could introduce under the alleged plea of justification. Chapman vs. A. and W. Pt. R. R., this term.^*

4. It is not an open question that the Carlisle tables are evidence in the courts of this state. The conclusiveness of the evidence or the degree of its weight, are different matters. That they are not conclusive, nobody questions; but they furnish data on which the jury may act, and make a circumstance to be weighed by them.

5. The charge excepted to in the fourth ground of the motion, read in connection with the entire charge in the record, is not error. In summing up on the issue of the engineer remaining on the engine or jumping off to save his life, the judge, in our opinion, put the issue fairly before the jury in charging to the effect that if, in the emergency upon him, he believed, and had reason to believe, ■ that in sanding the track, or otherwise working the engine, he could prevent the collision and save life, and it was necessary to that end that he remain at his post in this moment of danger, then the defendant in error-c'ould recover, but if it was not so necessary, and he knew it, or ought to have known it, then she could not recover on this issue.

6. The refusal to charge the several requests embodied in the fifth, sixth and seventh grounds of the motion, is not deemed sufficient to authorize a new trial, when considered in connection with the clear, concise and able charge of the fair-minded and upright judge who tried the case. A more complete and correct, a more luminous and more easily understood charge to a jury on the law applicable to the facts of the case, it would be hard to find in the books or hear from the circuit judge, and it strikes us as impartial, as it is in other respects excellent.

7. We all think the case close on the issues of negligence in the company and negligence in the deceased, but my brethren think that the evidence is sufficient to uphold tire verdict on those issues. I incline to the opinion that the facts make one of those' accidents incidental to the business in which the deceased was engaged, with no appreciable fault in the deceased, or in the other employes; and while the catastrophe is to be deplored, it is difficult to see that aught but accident incidental to the business of an employé of the company, caused his death; and therefore, his unfortunate widow has hardly made a case for recovery.

8. In respect to the issue of avoiding the catastrophe by leaping from the engine to save his life, we all agree that at such a moment, in charge of such a train, in view'of passenger cars in his front, full of human life, to remain at his post in the hope of saving other lives would be an act of heroism so exalted as to constrain approval from all human hearts, and that courts, however cold and calm duty requires them to bo in ail cases, should place themselves in the position of the engineer at the moment of such imminent danger, demanding such instantaneous decision and action, and should not scan closely the grounds of hope he may have had to save others, though risking himself in the effort. -It is the policy of the carriers, as well as that of the great public carried rapidly by their trains, not to encourage the officer in charge of the engine that moves those trains to abandon his post in the moment of danger, but to reward the courage of remaining, if there be a hope, however slight, of saving two trains from collision and wreck and the lives of hundreds aboard.. Whilst, if there be no shadow of hope of averting disaster to others, the engineer should save himself; yet on a hope, however faint, for reasons, however inconclusively establishing the soundness of his conclusion that by risking his own life he would prob • ably save other lives, ho should remain at his post; and the act of heroism, though inoperative of good either to himself or others in the particular cáse, should be regarded as martyrdom to public policy, rather than want of precaution to save himself. No man needs much encouragement to save his own life. “ Self preservation is the first law of nature.” It requires kinship to Christ to die, or to risk death, to preserve the lives of others.

The reasoning of the Supreme Court of Wisconsin, in Cottrell, adm’r, vs. The C. M. and St. P. Rwy. Co., 47 Wis. R., 634, strikes us with great force, and the great principle of public policy alluded to above cannot be better enforced and illustrated than by citations from the opinion of that court in that esse.

The court there say: “The very employment of the locomotive engineer, with its manifold and sudden and unexpected dangers, requires the highest type and best qualities of true manhood, invincible bravery, and great integrity . . . They are placed in charge of one of the mighty forces of nature, held in servitude by tho most dangerous and intricate machinery, and great skill, unremitting attention, sleepless vigilance and fearlessness of danger are required to keep them in constant control.The question which should determine their reasonable care or want of care is, how careful and prudent locomotive engineers would ordinarily and commonly act at such a time, in such a place and such circumstances, and not how firemen or other employes would or should- . . . It will not do to establish a rule by which the •duty of an engineer in such an emergency may be measured and dictated by cowardice and timidity, and by which his standing at his place and facing danger will be carelessness and negligence. Who shall sit in judgment upon this brave engineer, to coolly determine the alternative .risks and chances which he is compelled to take instantly,-' with scarcely a moment for deliberation, in such a terrible emergency ? The defence resting upon such a theory in this case cannot be sanctioned, although cases may possibly arise in which even the common prudence of an engineer might require him to leave his engine to escape ■danger; but such cases will be rare exceptions, and depend upon very peculiar circumstances.”

The facts of that case are quite similar to this. There,; as here, the fireman jumped and saved his life. There, as here, there was imminent danger of a collision. There, as here, it did occur, and the engineer was killed, with hand •on throttle, trying to check and control his powerful machine. There the decision is squarely that the defence’ was untenable. And we hold, with that court, that it must be clear, from the facts, that the engineer could not, with •any degree of probability, be of service at his post, before •courts should hold it want of common care for him to brave danger and stand at his post.

Judgment affirmed.

* Ante, p. 547.