112 Ga. 725 | Ga. | 1901
Mrs. Alice M. Walker brought suit against the Atlanta Railway and Power Company, in the city court of Atlanta, for $20,000 damages, on account of the death of her husband, W. T. Walker, alleged to have been caused by the negligence of the defendant or its employees in the running of one of its cars through the streets of the city of Atlanta. The defendant filed a plea, denying liability, and claiming that the death of plaintiff's husband was due to his own negligence and could not have been avoided by defendant or the crew in charge of its car. Upon the trial the jury returned a verdict for the plaintiff for $4,000; whereupon the defendant moved for a new trial upon divers grounds, upon all of which the motion was overruled. To the judgment of the court below overruling its motion for a new trial defendant excepts.
It is not contended that the charge which the court gave, and which we have quoted above, was not a correct proposition of law. In that portion of the charge the judge was not dealing with the measure of damages which the plaintiff would be entitled to receive in the event the defendant should be found to be liable. He was simply charging the law as to the liability of the defendant, and the language used was a correct exposition of the law on this subject. The claim that a new trial should be granted on account of this charge, because of the failure to give in connection therewith a pertinent charge on the subject of the measure of damages, can not be upheld. It would not Have been proper for the court to give such a charge in that connection. The question of the measure of damages was taken up in another branch of the charge entirely disconnected from the question of the liability of the defendant. Giving a correct instruction to the jury is certainly not cause for a new trial because of the failure to give in same connection a pertinent charge upon a different branch of the law applicable to the case. It will be observed that no request was made by counsel for plaintiff in error for the court to give the charge which it is claimed should have been given in this connection, nor was the principle embraced in his pleadings. On the contrary, the plea of the defendant denied all liability, and made no special defense upon the theory of the impaired capacity of the deceased resulting from the force of the original collision. In City of Atlanta v. Alexander, 80 Ga. 637,
Judgment affirmed.