Savannah Electric Co. v. Dixon , 18 Ga. App. 314 ( 1916 )

Hodges, J.

1. Tlie petition set 'forth a cause of action, and the judgment sustaining certain grounds of the demurrer and overruling others was not error.

2. It can not, on the record in this case, be held that the verdict was induced by bias or prejudice; and, the trial judge having approved the verdict, this court has no right to interfere upon the ground that the amount awarded as damages ($3,000 for the homicide of a six-year-old boy) was excessive.

3. The court gave in charge to the jury the proper measure of damages. A parent is entitled, under the law, to recover the present cash value of the services of a minor child, negligently killed, without deduction for the usual and reasonable expenses of caring for and rearing such child to its majority, and the amount of damages can be arrived at from a consideration of the evidence, or from experience and a knowledge of human affairs on the part of the jury.

4. The court did not err in not instructing the jury that they must determine the reasonable expense of caring for and rearing the deceased, and deduct this sum from any amount they found as damages. No evidence was offered upon this line, and, even conceding that such evidence would have been admissible, the court was not authorized to give the jury instructions on the. subject.

5. There was no error in the failure of the judge to submit to the jury the defense that the plaintiff was negligent in permitting the child to go unattended on the street. The fact that the mother of a six-year-old boy sent him unattended to make a purchase for her, and that while performing this duty he was killed by a street-railway car, by reason of the negligence of an incompetent servant of the railway company operating it, can in no way affect the mother’s right to recover the present cash value of the services of the son until his majority. It can not be said that the mother, in sending her six-year-old son unattended to a bakery to make a purchase, was guilty of such negligence as would prevent a recovery, where the evidence disclosed that the child was physically and mentally well developed and capable of performing such duty. There was no timely written request to charge the jury upon this subject. If the insistence that the mother of the deceased was negligent in sending him unattended to the bakery is correct, it would not affect her right of recovery for his homicide, as the evidence discloses that the child was killed by a servant of the defendant, not in the exercise of ordinary care and diligence, and at a time and place at which, if the servant had attended to his duties, the homicide could not have occurred. Judgment affirmed.

Oliver & Oliver, contra, cited:

(On measure of damages) Civil Code, §§ 4424, 4425; Fuller v. Inman, 10 Ga. App. 692; Amos v. Ry. Co., 104 Ga. 812; Culberson v. Alabama Construction Co., 127 Ga. 599; McDowell v. Ga. R. Co., 60 Ga. 320; Augusta Factory v. Davis, 87 Ga. 648; S., F. & W. Ry. Co. v. Smith, 93 Ga. 742; Frazier v. R. Co., 101 Ga. 70, 72; Central R. Co. v. Harrison, 73 Ga. 744; City of Albany v. Lindsay, 11 Ga. App. 573. (Contributory negligence) Cohen v. Cody Sales Co., 14 Ga. App. 234; Walker v. R. Co., 112 Ga. 725.