Atlantic Coast Line Railroad v. Moore , 8 Ga. App. 185 ( 1910 )

Eüssell, J.

(After stating the foregoing facts.) So far as the general grounds of the motion are concerned, it can not be said that the verdict is without evidence to support it. . A consideration of each of the exceptions to the charge of the court, in connection with the charge as a whole, as it appears in the record, and a careful examination of the brief of evidence, convinces us that the charge contains no error which requires a grant of a new trial. The several exceptions which we have quoted furnish an illustration of the fact that when only segregated excerpts of a charge" are considered, a minor error may be seemingly aggravated, and error appear to exist, whore in fact there is none. As appears in the context of the charge (following the portion which is made the subject of the first exception, and also in other portions of the charge), the jury were several times told by the court that the plaintiff could no,t recover for any negligence of the defendant, if any had been shown, other than that specifically charged in the petition. The questions which arise, then, arc, whether the portions of the charge excepted to were misleading and confusing; whether the court should have specifically eliminated certain allegations of negligence, because of lack of evidence to support them; and whether the charge authorized the plaintiff to recover even 'though some of the grounds of negligence relied upon may not have been the proximate cause of the injury or have contributed thereto. It is insisted that the court erred in leaving to the determination of the jury whether certain acts or omissions of the defendant were in fact negligence. We would only say, in regard to this last insistence, that we heartily approve the charge of the court in this respect, because negligence is purely a question of fact, and its absence or existence should always be submitted to the jury for their determination.

As to the insistence of the plaintiff in error that the charge of the court submits to the jury, as issues of fact, on the question of the defendant’s negligence, three allegations of negligence as to which no evidence was introduced^ it is only necessary to say that when the plaintiff ¡Droved his injury, and proved that it was caused by the defendant’s train, all of the distinct allegations of negligence in the petition were presumptively proved, and the burden was east upon the defendant of rebutting that presumption. If the defendant failed to rebut this presumptive proof (and in this cáse no evidence to that effect was offered), the plaintiff had established prima facie that his injury was diie to each and all of the negligent acts or omissions charged in his declaration; so we do not think the insistence can be maintained that the court’s’ charge was without evidence to authorize it. As to the failure to furnish gates or guards, the failure to furnish a watchman and to provide electric of other lights, it was not for the court, but for the jury, to say whether these omissions on the part of the defendant company, or either of them, constitute negligence. See Columbus Railroad Co. v. Asbell, 133 Ga. 573 (66 S. E. 902).

The plaintiff in error insists that a plaintiff can not detail in a petition a number of absurd allegations of negligence and then have the court submit them to the jury, without reasonable evidence to prove them. Tn regard to this it is only necessary to say that i P the allegations of a petition are absurd or unreasonable, and it palpably appears that the statement of facts in the petition would not constitute actionable negligence, a timely demurrer would serve to raise the issue of law and to cause the elimination of those allegations which should not properly he submitted to the jury.

Tt is held in Savannah etc. Railway v. Beasley, 94 Ga. 142 (21 S. E. 285), that “in charging the jury upon negligence, the court should not enumerate acts or omissions which are wholly outside of any degree of diligence which the law requires.” Assuming, then, that the plaintiff had proved the allegations contained in his petition by the presumption arising from proof of the injury, did the court err in submitting to the jury the failure to furnish a watchman to lower the gates or to provide electric lights, for the reason that they were outside of any degree of diligence required by law? We think not. Of course, “diligence,” like “negligence,” is a relative term. In determining whether due diligence is used in any particular case where negligence would be wrongful,' all of the surrounding circumstances are to be considered. A degree of diligence which might suffice under one set of circumstances might be wholly inadequate under different conditions. This is a matter which the law recognizes, and in every case the jury, in determining the fact of negligence or no negligence, must be governed by the circumstances and conditions surrounding the act or omission under consideration. In our view that all questions of negligence are primarily questions of fact, there could certainly be no error in submitting to the jury whether the failure to provide lights, or to lower the rails, or to place a watchman at this street-crossing, should have been submitted to the jury in connection with the other circumstances of the case, to allow the jury to say whether these omissions were, under the existing circumstances, negligence. But inasmuch as it appears undisputed in the evidence that the point where the plaintiff claimed to have been hurt was upon a much traveled street of a populous citjr, and that, in addition, the tracks of the defendant at this particular point were almost constantly used, we think' the court would have been safe in assuming that the omissions which were charged as negligence were not outside of that degree of diligence which the law would require at such a locality, and that therefore the charge of the court was not in conflict with anything held in the Beasley case, supra.

Tt is insisted that the instructions of which complaint is made in the first three special grounds of the motion for a new trial are in conflict with the ruling of the Supreme Court in Alabama Midland Ry. Co. v. Guilford, 114 Ga. 631 (40 S. E. 796), in which case the court charged that if the defendant was negligent “in any of the particulars set out in the declaration and contended for bv the plaintiff, you should find this defendant company liable, provided you find that the plaintiff sustained an injury.” ■ It is true that this charge was disapproved by the Supremo Court, but it was expressly upon the ground that some of the allegations, even if proved, would not have authorized a recovery against the defendant; and the court says further: “The charge left the jury free to find for the plaintiff because of any such act of negligence, although such act may not have in any wise contributed to the plaintiff’s injury.” The facts in the Guilford case were very dissimilar to those' in the case at bar, because, in our judgment, any one of the acts of negligence alleged in the present case, if the plaintiff was himself free from fault, might have caused or contributed to the injury and authorized a recovery. It is to .be- noted, too, that in Kelly v. Sirouse, 116 Ga. 890 (43 S. E. 280), the method of reviewing the. pleadings, sanctioned in the Guilford case, supra, is expressly disapproved. Eor the reason, then, that we think that the allegations of negligence were within that degree of diligence which the law requires, and because all or any of them could have been considered to be the proximate cause of the plaintiff’s injury, we hold that there was no error in the charge of the court as given, and that the judge was not required to eliminate any of the acts or omissions alleged to be negligence'. Of course, the court was required to charge the jury that they must find the specific acts of negligence to have been the proximate cause of the injury; but the judge was not required to needlessly repeat the instruction in totidem verbis that the negligence charged must bo the proximate cause of the injury. In the first instruction of which complaint is made, the judge charged this principle by exclusion. He instructed the jury that the plainti if could not recover for any negligence not specifically charged; that if the defendant was negligent in the respects charged, and the plaintiff could not have avoided the negligence alleged, by the exercise of ordinary care for his own safety, and that if he was in the exercise of ordinary and reasonable care, then he would bo entitled to recover. The court then proceeded as follows: “I charge you that the plaintiff, if he is entitled to recover, is entitled to recover only upon the allegations set forth in his declaration, and none other. In other words, it must be shown to you that the injury occurred as described in the declaration and that that injury, so done, was caused by the, lack of ordinary care and diligence, either in the acts alleged or in the omission of acts alleged in the declaration.” Further on in the charge the court repeats the instruction to the effect that the jury must find that the negligence alleged was the cause of the plaintiff’s injuries, in the following language: “If you find, from the evidence, that ordinary care and prudence require that the defendant should have done what it is alleged it should have done to avoid the alleged danger set out in the' petition, and that the defendant failed so to provide persons, servants, or means as therein alleged to be necessary, etc., and that such failure was negligence and was the cause of the injury received,, etc., then that would make such a case as would authorize a recovery on the part of the plaintiff.” In the charge excepted to in the 5th special ground of the motion for a new trial the jury is again instructed that the plaintiff can only recover if he was injured in the manner described, and because of something alleged to have been done or omitted. We' do not think that the jury could have failed to understand that the plaintiff could only recover on accorxnt of such negligence as was the proximate cause of the injury, even though the term “proximate cause” was not used. In actions for damages for personal injuries the jury should of course be informed that an act of negligence which is not the proximate cause of the injury should not be considered; but in the absence of a request for specific instructions upon that point, the fact that the idea is conveyed indirectly, and otherwise than by a pointed statement to that effect, though plainly, does not afford ground for a new trial.

We find no error in the instructions upon the measure of damages. The age of the plaintiff was in evidence, and although the mortality tables were not introduced, the plaintiff appeared before the jury, and there is nothing in the evidence to show that his health or habits were either better or worse than the average. ’ With these facts before them the jury could as well determine the expectancy of the plaintiff from their observation and experience as from the tables of mortality. The court having fully instructed the jury that they were to take into consideration lost time and irregularity of income, feebleness of health, actual sickness, loss of employment, voluntarily abstaining from work, dullness in business, reduction in wages, and increasing’ infirmities of age, there was no error in charging the jury as follows: “Having arrived at the yearly loss, as indicated above, you can multiply the amount so ascertained by tlie expectancy of life of tlie plaintiff, and tlie'res'ult will be the gross amount of the loss he will have sustained during his life expectancy.” Merchants & Miners Transportation Co. v. Corcoran, 4 Ga. App. 654, 669 (62 S. E. 130); Savannah etc. Ry. Co. v. Stewart, 71 Ga. 446. In the case last cited Judge Jackson sajrs: “I know of no law which requires tables of the probable length of life and its probable worth to be introduced. They may be a useful circumstance,' but are not conclusive or absolutely essential.”

There is no merit in the exception to the charge that the cash value may be arrived at by dividing the gross amount by $1, plus interest on $1 -at 7 per cent, for the plaintiffs expectancy of life. The complaint is that the instruction lays down an incorrect rule for determining the cash value, especially because allowance must be made for increasing years, feebleness of health, sickness, loss of employment, etc. As we have already pointed out, the judge had already instructed the jury to make deductions and allowances for these matters. In the extract excepted to, the court referred to a gross sum, but this sum was to be arrived at by considering all of the contingencies and reductions which had been referred to by the court in connection with the expectancy of life. The instruction, properly construed, means the annual income and the average expectancy, both diminished by the various contingencies pointed out in the charge. The same instruction of which complaint is here made was given in the case of Savannah Electric Co. v. Bell, 124 Ga. 668 (53 S. E. 109), and was approved as a correct rule for estimating the present value of a sum payable in the future, tlie court citing Kinney v. Folkerts, 84 Mich. 816 (48 N. W. 283). But even if the instruction complained of is not technically correct, it would afford no ground for a reversal, for the reasons stated in tlie Corcoran case, supra.

The error complained of in the 8th ground, if an error at all, appears harmless when the assignment is considered in connection with the note of the presiding judge, and when the excerpt from Murray’s testimony is read with its context. In approving this ground the judge says that the 8th ground is approved with the qualification that the plaintiff expressly disclaimed that the statement narrated by the witness as having been made to him by Martin Fifer was introduced for the purpose of establishing the truth of the hearsay statement of Fifer to the witness "West Murray. This testimony was admitted for the sole purpose of fixing the time of day of the original report made by Fifer to Murray, it being contended that this was a circumstance to aid in fixing the time the injury was inflicted, and was introduced and used for this and no other purpose. The said statement was not urged before the jury in argument save for the purpose aforesaid. One of the issues in the case was the time of the occurrence in which the plaintiff claimed to have been injured. The plaintiff contended that he was injured between 11 and 12 o’clock. The defendant’s witnesses testified that he was injured between 12 and 1 o’clock. The fact that Martin Fifer reported the circumstance to West Murray at 11 o’clock was certainly relevant, and what he said in making the report could very properly be considered as part of the res gestae of the report. Granting that what Martin Fifer said to' West Murray was hearsay, it would nevertheless be admissible as explanatory of Fifer’s conduct. Hearsay is admissible to explain motive or conduct; and as the court properly restricted the purpose for which this evidence was used, the assignment of error complaining of its introduction 'is not meritorious.

Upon a review of the whole case we are satisfied that the trial was without error, and that the result of the case turned solely upon the credibility of the witnesses. There was, therefore, no error in refusing a new trial. Judgment affirmed.