Georgia Northern Railway Co. v. Battle , 22 Ga. App. 665 ( 1918 )

Jenkins, J.

(After stating the foregoing facts.) We think the objection to the excerpt from the charge of the court is well taken. It was for the jury to say, from the evidence adduced, what the value of the property was, and the charge of the court in fixing the value thereof as tliat alleged in the petition was an invasion of the province of the jury, and was therefore error. The charge complained of was in effect a direction to the jury by the court that if they should find in favor of the plaintiff, they should find -in his favor the sum of $275, the amount alleged in the petition as the value of the stock killed. While it is true that the only evidence introduced upon the trial of the ease as to the value of the stock was -the uncontradicted testimony of the plaintiff himself, who swore that the stock was worth the sum alleged in the petition, and while this was sufficient to prove the- value of the stock killed and establish the measure of damages sustained (Seaboard Air-Line Ry. v. Peeples, 12 Ga. App. 206 (77 S. E. 12), still, as was held in the case of Westberry v. Hand, 19 Ga. App. 529 (91 S. E. 930), “The question as to the value of an article is peculiarly for the jury,” and “Jurors are not required to accept as correct the uncontradicted opinion or estimate of a witness as to the value of property, and may by their verdict place a lower value upon the property.” They had the right to also consider the testimony relative to the nature of the property involved, and every other fact and circumstance properly within their knowledge throwing light upon the question. See also Johnson v. Stevens, 19 Ga. App. 192 (91 S. E. 220); Lott v. Banks, 21 Ga. App. 246 (94 S. E. 322 (4)). Since the charge of the court deprived the jury of the right of fixing the value of the property, it was such harmful error as to require the grant of a new trial, for the jury might have, had they been permitted to do so, found a verdict for a sum less than that laid in the petition and sworn to by the plaintiff.

Judgment reversed.

Wade, G. J., and Luke, J., concur.