115 Ala. 389 | Ala. | 1896
Too much prominence was given by the court below in its charges to the jury to the fact that the plaintiff was a minor at the time he received the injuries of which he complains, in view of the further fact that he was approaching his majority, being about nineteen years old, and was fully matured physically and mentally for one of his age; or, more accurately speaking perhaps, the court unduly obscured these latter facts. A minor upon entering contractually upon a given service assumes the risks thereof as fully as does an adult; and the mere fact of minority does not of and in itself necessarily impose upon the master any other or greater degree of care in respect of the minor than would be upon him had the servant attained full age. It is the immaturity of mental and physical faculties and capacity which is incident to some minors but not all, but not the mere fact of minority, which the master must have special regard for ; and where in a given instance of minority this immaturity is wanting, the minor stands upon the plane of adults. On this view, charges 8 and 11 given for plaintiff, and perhaps others so given, and also certain declarations in the charge given ex mero mota to the jury, were faulty.
The degree of conviction on the part of the jury necessary to justify a verdict is erroneously stated in several of the instructions given at plaintiff’s request. A mere preponderance of evidence upon the one side or the other does not necessarily afford a basis for a verdict. The fact that the jury have “more belief” that one party has sustained his case or defense than they have belief as to the other party, may7 not authorize a verdict. The jury in civil cases must be reasonably satisfied that the facts essential to the cause of action have been established before they can justly render a verdict for the plaintiff; and there might well be a preponderance of
Charge 7 was bad. There were no data in evidence upon which the jury could have admeasured plaintiff’s damages in the manner they were required to assess the damages by this charge. It neither appears that plaintiff’s earning capacity was lessened to the extent of one-half or any other aliquot part, nor what his full earning capacity had been.
We are unable to see the pertinency of the fact that the plaintiff “had not run that fast on a hand-car before,” or the fact that the other men on the hand-car at the time plaintiff fell therefrom had worked with Holmes “ longer on that section than the plaintiff,” had to any issue in the case. The testimony in both these connections should have been excluded.
It is unnecessary to consider the action of the circuit court in overruling defendant’s motion for a new trial.
Reversed and remanded.
