Seaboard Air-Line Railway v. Bishop , 132 Ga. 37 ( 1909 )

Beck, J.

(After stating the foregoing facts.)

1. While the evidence introduced by the plaintiff to establish, the alleged fact of negligence upon the part of the defendant, company, as alleged in the petition in this case, is weak and in many respects unsatisfactory, it can not be said that, taking into-consideration all the evidence and the deductions which the jury were authorized to make therefrom, the trial judge erred in the • exercise of his discretion, when he refused to grant a new trial, on the ground that the verdict was contrary to the evidence and. without evidence to support it. Questions like that raised by the assignment of error in this ground of the mo lion must be left largely to the discretion of the judge who tried the case and heard the evidence; and when he is satisfied with the verdict, this court will, not interfere, except in a very strong case calling for interference.

2. In the first ground of the amended motion error is assigned upon the following charge of the court: “The general rule-of damages in. a .case like this is as follows: Damages are given as compensation for the injury done, and generally this is'the-measure where the injury is of a character capable of being estimated in money.” It is insisted that this charge is erroneous, in that no definite measure of damages is therein given, but that the jury were left free to arbitrarily fix upon an amount of damages, without being governed by any legal rule- for determining the same. The charge is abstractly correct, and it is a statement of a principle of law, embodied in §3905 of the Civil Code; and the mere fact that the charge does not contain some other pertinent legal principle, which should be given in the course of the court’s instructions to the jury, did not render the giving of the particular charge set forth in any way erroneous.

In a subsequent ground of the motion complaint is made of the following charge of the court: “If, under these instructions and under the evidence submitted to you, you think the defendant is liable to the plaintiff, you should give him a verdict for such an amount as will fairly and honestly compensate him for the' injury he has sustained.” There was no error in the portion of the charge last quoted. It was merely an- application of the general principle stated in the extract from the charge immediately preceding it.

The seventh ground of the motion is based upon the failure' of the court “to give in charge to the jury any instructions as to the legal measure of damages.” Of course, this assignment of error is to be construed as complaining of the failure on the part of the court to give to the jury any instructions as to the legal measure of damages, other than those general principles embodied in the two excerpts above set forth. While the charge would have been more satisfactory and, no doubt, more helpful to the jury, if it had contained a somewhat more definite and precise rule in regard to the measure of damages, we do not-think that, in the absence of a timely written request, the court’s, failure to deal more elaborately with the subject of the measure, of damages should work a reversal in this case. It is not apparent how a charge that limited the jury, in fixing the amount of damages to be allowed, to such a sum as would compensate-the plaintiff for the injury sustained by him, could have been hurtful to the defendant in the case. It would seem that if tho court had gone into a more elaborate charge, stating to the jury that they might, in determining the amount of damages, take into consideration the diminished earning capacity of the plaintiff, his loss of time, his pain and suffering, mental and physical, and had then added, as is usual and proper in charging upon this subject, that in passing upon the question as to the damages to be allowed for pain and suffering, there was no other measure than the enlightened consciences of impartial jurors, such a charge would have been less favorable to the defendant in the case than that actually given, and of which complaint is made. In the case of the Central of Ga. Ry. Co. v. Hughes, 127 Ga. 595 (56 S. E. 770), it appears, from an inspection of the record of file in this court, that no rule at all as to the measure of damages was given in charge to the jury. In that respect, the case at bar is radically different from the case last cited.

3. Error is also assigned upon the following charge: “Where one engaged in dangerous work is directed by his superior to perform a given act, he may without negligence obey such direction, if the danger incident thereto is not unusual nor the risk bejnnd that necessarily contemplated in his employment.” It is not insisted in the ground of the motion, complaining of this charge, that it is not abstractly correct, but it is contended that the charge is “not appropriate nor adjusted to the evidence in the case.” It would seem, however, that the court was fully authorized, under the evidence, to deal with the subject to which this charge refers, especially in view of the fact that the plaintiff had been directed, by one to whose orders he was subject in the matter of placing the cars, to take the car which was derailed upon the track where, the derailment occurred, by which the plaintiff was injured, and there having been, evidence introduced by the defendant company to show that the car might have been thrown from the track by coal which had been placed or allowed to accumulate on the track, and that the danger arising from the presence of the coal upon the track was one of which the plaintiff knew, or in the exercise of proper care and diligence should have known.

There were other minor inaccuracies in the’charge complained of, but none of them were of a character grave enough to require discussion.

Judgment affirmed.

All the Justices concur.