Alabama & Vicksburg Railway Co. v. Overstreet ( 1904 )

Whitfield, C. J.,

delivered the opinion of the court.

The instruction No. 1 for appellees is in these words: “The court instructs the jury that if they believe from the evidence, by preponderance thereof, that Hall, the superior agent of defendant, directed Babbington to go upon the bridge of defendant, and to first take off the nuts of certain bolts screwed on bolts then in pieces of timber in said bridge, used for the purpose of holding safely said timber, and to knock said bolts out of the said heavy pieces of timber, and then put ropes around the timbers and’lower them, and that the doing of sáid acts were negligent; that said Hall was present when said negligent work was performed; and that T. B. Overstreet lost his life from a piece of timber falling on him and producing the wounds that caused his death when said timber was being so removed — the defendant is liable, and the jury should so find.” There is no warrant in the' testimony for the use of the words “first” and “then” in this instruction. The testimony does not fix any order in which the three things were to be done. The instruction is clearly erroneous for this reason. It is insisted that this instruction is also erroneous as assuming that Hall was present when the brace which killed Overstreet fell. But there is testimony both ways on this point, and the jury settled the facts.

The fourth instruction is in these words: “If the jury believe by a preponderance of the evidence that plaintiffs are entitled to recover in this suit, they may take into consideration the physical condition of deceased at time of his death, the wages he was then earning, and his future prospects for , earning .money and accumulating property, and the probable length of the life of deceased, in fixing the amount of damages.” There is no testimony whatever as to Overstreet’s prospects for the future, his future accumulations of property, or as to his expectancy of life — absolutely none. Learned counsel for appellees, in their brief, say that his expectancy was thirty-two years. If there was any evidence to this effect in the court below, it is omitted from this record. We are bound by the record, and the instruction is fatally erroneous. The jury had no standard by which to fix damages.

It was error, also, to refuse to allow appellant to prove, if' it could, by Simpson and others, what the custom was as to lowering braces. The error is more noticeable since two witnesses for appellees had been allowed to testify to the custom. The question to Babbington as to what he “expected to hold the brace” when the bolts should have been knocked out was not in proper form. It would be competent to show what, as a fact, could hold them, but not what he expected would hold them.

We do not consider the constitutional question involved, because of the well-settled canon that such questions will not be decided save when necessary to decision. What we have said points out sufficiently the errors to be avoided on a new trial.

Reversed and remanded.