Georgia Railroad & Banking Co. v. Wallis , 29 Ga. App. 706 ( 1923 )

Bell, J.

(After stating the foregoing facts.)

It is strongly maintained by the plaintiff in error that the evidence demanded two conclusions: (1) that the presumption of negligence, which arose against the company upon proof of the killing as alleged, was entirely removed; (2) that the decedent’s own carelessness or failure to exercise ordinary care was the proximaté cause of his injury; either of which would absolve the defendant from any liability. Waiving the question as to whether or not the jury would have been authorized to find negligence on the part of the company in failing to keep a guard or watchman or to have any gates or other signals at this crossing, and also as to whether there was negligence in the speed at which the train was moving at the time and place in question, considering the populous character of the crossing, we find that the jury were .authorized, though of course not required, to infer that the company was negligent in at least two of the particulars charged in the complaint. The evidence does not demand a conclusion that some warning could not have been given by the railroad company’s employees after the perilous situation of the decedent was discovered by the fireman. Whether the fireman’s judgment, that any effort to avoid the killing of the decedent after his presence was- discovered would have been of no avail, was well founded, or negligently unfounded, was under the particular facts and circumstances disclosed by the record, peculiarly a question for the jury.

It is insisted by the plaintiff in error, upon the authority of Rogers v. Georgia Railroad Co., 100 Ga. 699 (28 S. E. 457, 62 Am. St. R. 351), that there was no duty upon the part of the fireman to keep a lookout; and, while the point we are discussing is not. one directly involving such duty, but rather involves the question of the duty upon the fireman after the presence of the decedent had been observed, it may be noted that the Rogers case was distinguished in the case of Louisville &c. R. Co. v. Swann, 120 Ga. 695 (48 S. E. 117). That case will demonstrate the liability of the railroad company in some instances for the negligence of the fireman. We quote from the decision as follows: “The law requires that the employees in charge of an engine shall-keep a lookout for stock, but this is not the only duty imposed upon such employees. There are others of equal or greater importance. The duties which the evidence shows the engineer was engaged in were certainly of equal if not greater importance than looking out for stock, and under his testimony a sufficient reason was given why he did not see the stock, There being nothing in the evidence to charge the engineer with negligence, the .question is whether the evidence sufficiently accounts for the failure of the fireman to be on the lookout.' It has been held that a fireman being necessarily engaged in the performance of other duties indispensable to the running of the locomotive is a sufficient reason for not imputing to the company negligence on account of his not being on the lookout for stock. Rogers v. Railroad Company, 100 Ga. 699. In that case and in numerous others which have followed it, the fireman was engaged in firing his engine, which was a duty indispensable to the running of the locomotive. While a case might arise in which it would be a duty indispensable to the running of the locomotive for the fireman to-sweep from the floor of the engine the coal that had accumulated there as the result of a long run and continuous firing, the record before us does not disclose such case, and the jury might find, under the present record, that it was not absolutely necessary that this duty should have been discharged at this particular time when the higher duties devolving upon the engineer were such as to prevent him from keeping a lookout. If the evidence had been that the engineer was engaged in the duties which he referred to in his testimony, and the fireman had been engaged in firing at a time when firing was indispensable to the operation of the train, and for this reason neither was on the lookout, a more serious and difficult question would have been presented.” That ruling will show that the fireman was not without a duty, certainly after discovering the situation of the decedent, to exercise care for his safety, and that the company would be responsible for any failure of the fireman to perform such duty.

It was issuable also as to whether the signal by the ringing of the bell was given as the cars were approaching. The act of the General Assembly approved August 19, 1918 (Ga. L. 1918, p. 212), imposed the duty of giving such alarm. While, if we were sitting as jurors, we might not have found against the company upon this question, we are not for that reason authorized to set their finding aside, when the jurors were not required, under the evidence, to determine this issue in favor of the company. The determination of the question depended upon a consideration of positive and negative testimony. All of the positive testimony was in favor of the company. A number who were close enough to have heard the ringing of the,bell had it occurred testified they did not hear it. It is not suggested that any of these witnesses had not the normal capacity for hearing. “Negative evidence” does not amount to no evidence at all; otherwise the term would be a misnomer. And jurors are not obliged to discard it merely because of the existence of positive evidence in conflict therewith. “ Where the existence of a fact was affirmed by positive evidence and denied by negative evidence, an issue was raised, and the trial judge committed no error in properly submitting such issue to the jury.” Western & Atlantic R. Co. v. Mallett, 23 Ga. App. 367 (2) (98 S. E. 238). Negative evidence is only a species of circumstantial evidence. See also in this connection, Innis v. State, 42 Ga. 474 (1); Pendergrast v. Greeson, 6 Ga. App. 47, 50 (64 S. E. 282); Hunter v. State, 4 Ga. App. 761 (62 S. E. 466). So unquestionably the jury were authorized to find against the defendant upon at least two alleged grounds of negligence.

The question of the negligence of the decedent was naturally a matter also to be decided by the jury. They could hardly have found that he was guilty of reckless driving. Iiis negligence could have consisted only in not looking out for the train. It may be that the call of Eluker diverted his attention. He finally turned his face partly toward the alarm. The jury were not acting without reason if they found that he was endeavoring to locate the noise of this call, and that in doing so he was relieved, at least to some extent, from any imputation of negligence which might otherwise have been made because of his failure to look for the train. Fluker ivas to his left and the train was to his right. An inference was authorized that for some distance the two coal cars in some degree obstructed his view. Necessarily the jury have found that he was not so negligent as defendant. The evidence as disclosed by the record certainly did not demand a finding that his death was the result of negligence amounting to a failure to exercise ordinary care for his safety. If there was evidence of negligence qf both the defendant and the decedent, it was still a question for the jury to determine as to what was the proximate cause of the death; and upon the question of comparative negligence it was for them to say to what extent, if any, his death was attributable to his own negligence. Schofield v. Hatfield, 25 Ga. App. 513 (103 S. E. 732). Also we cannot say that the verdict was excessive.

The evidence which is set out in the third headnote was not subject to the objection made thereto. Evidence is material and relevant when it sheds any light on the issue. The time covered by the answer of the witness extended to the moment of his testimony, and since it appears that his acquaintance with the crossing' extended back to a time anterior to the homicide, the evidence objected to was obliged to include some reference to the transaction in question.

The brief of the counsel for the plaintiff in error contains the following statement: “ It was competent for him to testify that no watchman or guard was at the crossing at the time Wallis and the truck were hit; but to allow a witness to testify that a defendant may have been guilty of acts of negligence at other times in the past is not- permissible.” So no question is presented as to whether a failure to maintain a watchman might be found by the jury to constitute a negligent omission. The assignment of error contained in the record objects that the evidence did not “ relate to the time of the accident.” It included such time, and therefore related thereto. Whether the evidence would have been objectionable as including a reference 'to other times also is not involved by the assignment of error as made.

No elaboration of the headnotes here indicated seems to' be required.

There was no error in giving in charge the entire act of the General Assembly approved August 19, 1918 (Ga. L. 1918, p. 212), for the reason alleged, that the provisions as to the erection of blow-posts and the blowing of the whistle were prejudicial to the defendant. While the homicide occurred within the limits of an incorporated city, within which the provisions mentioned do not apply, the act contains an express declaration “ that within the corporate limits of cities, towns and villages of the State the said railroad company shall not be required either to erect the blow-post hereinbefore provided for, or to blow the whistle of their locomotive in approaching the crossing or public roads in said corporate limits, but in lieu thereof the engineer of said locomotive shall be required to signal the approach of his train to such crossing in said corporate limits by constantly tolling the bell of said locomotive, and on failure to do so the penalties of this section shall apply to such offense.” The giving of this entire act in charge could not be different from an erroneous instruction followed by ail express retraction; and in numerous cases such has been held no error. The latter portions of the act specifically withdrew any prior language thereof which was not applicable to the case on trial.

Exception is taken to the following excerpt from the charge of the court: “You could reduce it (the full value of the life of the deceased) to its present cash value, and your verdict should be for such sum as, if put out at interest at seven per cent, per annum, and exhausting a part of the principal each year, would produce each year what you find would be the decedent’s yearly earnings, and the entire sum would be exhausted at the end of the decedent’s expectancy as you find it. In other words, the amount found, with the addition of seven per cent, legal interest, would accomplish exactly such payments each year throughout the decedent’s expectancy as you find he would have earned during that expectancy and would be exhausted at the end of his expectancy.” This is alleged to be error for the reason that the jury not merely could, but under the law were required to, reduce the value of the life to a present value; that it gave to the jury a standard of calculation which the law does not authorize, and which would require the finding of too large a sum, and one which was impossible of application by the jury or anyone else not possessed of a knowledge of higher mathematics, if at' all; that it was misleading and confusing when taken in connection with the charge give upon the use of the annuity and mortality tables, in that it was based upon a standard of calculation entirely different from that required by the use of such tables as these were defined by the court; that it was impossible of application in that the court instructed the jury that they should allow such sum as would produce annually the amount of the decedent’s yearly earnings, and at the same time such sum as would be exhausted at the end of the decedent’s expectancy. The charge will be repeated with its immediate context, in order that its import may be correctly understood. "The court had charged that if the defendant was found to be liable, the measure of damages to be recovered should be the full value of the life of the deceased as shown by the evidence, without reduction for necessary or other personal expenses of the deceased had he lived (Civil Code of 1910, § 4425), less such deductions as should be made in accordance with other instructions if the death of the decedent was attributable in part to his own negligence, not amounting to a failure to exercise ordinary care. The court then proceeded as follows: “In estimating the amount of damages, if any, to be allowed in such case, the ’jury 'should consider all the facts and circumstances, the health of the.decedent, his occupation, his earning capacity, his probable expectancy of life, as provided by the statute of Georgia. You can consider his expectancy of life, and you can consider his earnings at the time of his death, and what you find to be his future earnings, but you would not be authorized to find the gross value of his life; that is, you could not add together the amounts which he would earn, year by year throughout his entire expectancy, and find that. On the contrary, you would have to reduce whatever amount should be found to be his future earnings throughout what you find his expectancy to be, to its present cash value, and you would have to do this upon the basis that money is worth seven per cent, per annum. In other words, on this seven per cent, discount basis you could reduce it to its present value, and your verdict should be for such a sum as, if put out at interest at seven per cent, per annum, and exhausting a part of the principal each year, would produce each year what you find would be the decedent’s yearly earnings, and the entire sum would be exhausted at the end of decedent’s expectancy, as you find it. In other words, the amount found, with the addition of seven per cent, legal interest, would accomplish exactly such payments each year throughout the decedent’s expectancy, and would be exhausted at the end of his expectancy.” Immediately following the charge quoted the jury were properly instructed as to the manner in which they might use the annuity and mortality tables admitted in evidence.

The charge was not error upon the ground that the jury were left with the option to reduce the value of the life to its present cash value or not as they might choose, for, as will be seen from the entire charge upon the subject, they were told, “You would have to reduce,” and “You would have to do this upon the basis,” etc.; again as shown in the excerpt, “ Your verdict should be for such sum as if put at interest,” etc. If the charge was impossible of application, then we should presume it was not applied and could neither help nor hurt either party to the case. The charge suggested by the Supreme Court in Florida &c. R. Co. v. Burney, 98 Ga. 1 (26 S. E. 730), on the, correct manner of applying the mortality and annuity tables has been followed in very many cases, and has been held to be good as against a similar exception (Southern Ry. Co. v. Scott, 128 Ga. 244 (2), 57 S. E. 504), and we think that the same may be held as to the charge now reviewed.

We doubt if any correct statement of the law would be error merely because of being hard to understand; but let us determine if this charge was inherently erroneous. It unquestionably conforms in substance with the principle announced by the Supreme Court in Atlanta & West Point R. Co. v. Newton, 85 Ga. 517 (4), 529 (11 S. E. 776). The only difference suggested by the counsel for the plaintiff in error is that in the Newton case the principal was applied to the net earnings of the decedent. It was in the charge now in question applied to the full value of the life of the decedent, without reduction for the value of expenses. This difference arises by reason of the act of 1887, by which deductions for the expenses of the decedent are not allowed in determining the full value of his life. The Newton case was governed by the law as it existed prior to that act. In that case the court said: “ The jury should have given her a sum that would be exhausted at the end of twelve years by expending each year an amount equal to the net annual earnings of the husband. Such would be the full value of his life. This death occurred before the act of 1887, which forbids any deduction for the husband’s expenses. Of course the gross annual earnings will be the measure in cases falling under this act.” The charge is fully in accord with the principle of annuities. In determining the present cash value of a life upon the basis of the yearly earnings for the period of expectancy it is not proper to find the gross sum and reduce it to its present value by the principle which would apply if the gross sum were to be payable only at the end of such period. In the latter case the present value would be arrived at by dividing the gross sum by one dollar, plus the legal interest, seven per cent, per annum, for the period of the expectancy. Such a method was applied by the trial courts in the cases of Standard Oil Co. v. Reagan, 15 Ga. App. 571 (5), (6) (84 S. E. 69), and Williams v. McCranie, 27 Ga. App. 693 (4) (109 S. E. 699); and while the instructions given in both of these eases were approved, the affirmances resulted because there was no error as against the defendants therein. The instructions which were under review in those eases were more favorable to the defendants than the law required. If the plaintiff in either had recovered some amount with which he was dissatisfied, and thereupon had excepted to such instructions, a different ruling might have been made. This is so for the reason that the instructions directed the calculation of the present value upon the basis of a gross sum payable all in a lump at the end of the expectancy, thus omitting altogether a consideration of the fact that the earnings of the decedent would have been enjoyed in annual installments. Necessarily it would require a larger sum paid down in spot cash to produce at interest the equivalent of the value of the life, when a part of the principal is to be used each year, than would be the case if none of the principal were withdrawn until the end of the expectancy. The accumulation of interest in the latter case would be larger, and therefore the original principal should be less.

We may demonstrate by an example that the charge here complained of is in line with the theory of annuities: Let us suppose that a decedent, for the loss of whose- life damages were sued for, had an expectancy of 20 years; that his earning capacity was $1,000 yearly. The gross value of his life would be $20,000. The beneficiaries, however, were enjoying his earnings each year. We cannot imagine any bank paying as much as seven per cent, interest on money, yet we will violently assume it for the convenience of the illustration. We will say that such a sum is to be recovered and paid immediately as will provide $1,000 a year for the space of 20 years. This sum should be such that, if put in a bank at seven per cent, interest, $1,000 could be drawn annually therefrom throughout the whole period, with none whatever remaining at the end. This is substantially what was charged in this case. It is exactly what is intended to be accomplished by the use of the mortality and annuity tables.

The instruction excepted to, if originally hard to understand, was followed by the instruction on the use of the tables, by which the calculation was easy to be made, and by which the general principle previously stated was concretely applied.

The charge which we are considering is, therefore, perfectly correct in principle. It might have been more specific in regard to the part to be exhausted each year. The part to be annually exhausted would be, as a matter of course, the equivalent of the yearly earnings of the decedent. No exception, however, is taken upon this ground. Moreover, we are not intending to say that such exception, if made, would have been good. We are satisfied that the charge is not subject to any of the general assignments made thereon.

It cannot be adjudged that there was an abuse of discretion by the trial court in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens> J., concur.