8 Ga. App. 185 | Ga. Ct. App. | 1910
(After stating the foregoing facts.) So far as the general grounds of the motion are concerned, it can not be said that the verdict is without evidence to support it. . A consideration of each of the exceptions to the charge of the court, in connection with the charge as a whole, as it appears in the record, and a careful examination of the brief of evidence, convinces us that the charge contains no error which requires a grant of a new trial. The several exceptions which we have quoted furnish an illustration of the fact that when only segregated excerpts of a charge" are considered, a minor error may be seemingly aggravated, and error appear to exist, whore in fact there is none. As appears in the context of the charge (following the portion which is made the subject of the first exception, and also in other portions of the charge), the jury were several times told by the court that the plaintiff could no,t recover for any negligence of the defendant, if any had been shown, other than that specifically charged in the petition. The questions which arise, then, arc, whether the portions of the charge excepted to were misleading and confusing; whether the court should have specifically eliminated certain allegations of negligence, because of lack of evidence to support them; and whether the charge authorized the plaintiff to recover even 'though
As to the insistence of the plaintiff in error that the charge of the court submits to the jury, as issues of fact, on the question of the defendant’s negligence, three allegations of negligence as to which no evidence was introduced^ it is only necessary to say that when the plaintiff ¡Droved his injury, and proved that it was caused by the defendant’s train, all of the distinct allegations of negligence in the petition were presumptively proved, and the burden was east upon the defendant of rebutting that presumption. If the defendant failed to rebut this presumptive proof (and in this cáse no evidence to that effect was offered), the plaintiff had established prima facie that his injury was diie to each and all of the negligent acts or omissions charged in his declaration; so we do not think the insistence can be maintained that the court’s’ charge was without evidence to authorize it. As to the failure to furnish gates or guards, the failure to furnish a watchman and to provide electric of other lights, it was not for the court, but for the jury, to say whether these omissions on the part of the defendant company, or either of them, constitute negligence. See Columbus Railroad Co. v. Asbell, 133 Ga. 573 (66 S. E. 902).
The plaintiff in error insists that a plaintiff can not detail in a petition a number of absurd allegations of negligence and then have the court submit them to the jury, without reasonable evidence to prove them. Tn regard to this it is only necessary to say that i P the allegations of a petition are absurd or unreasonable, and it palpably appears that the statement of facts in the petition would not constitute actionable negligence, a timely demurrer would serve to raise the issue of law and to cause the elimination of those allegations which should not properly he submitted to the jury.
Tt is held in Savannah etc. Railway v. Beasley, 94 Ga. 142 (21 S. E. 285), that “in charging the jury upon negligence, the
Tt is insisted that the instructions of which complaint is made in the first three special grounds of the motion for a new trial are in conflict with the ruling of the Supreme Court in Alabama Midland Ry. Co. v. Guilford, 114 Ga. 631 (40 S. E. 796), in which case the court charged that if the defendant was negligent “in any of the particulars set out in the declaration and contended for bv the plaintiff, you should find this defendant company liable, provided
We find no error in the instructions upon the measure of damages. The age of the plaintiff was in evidence, and although the mortality tables were not introduced, the plaintiff appeared before the jury, and there is nothing in the evidence to show that his health or habits were either better or worse than the average. ’ With these facts before them the jury could as well determine the expectancy of the plaintiff from their observation and experience as from the tables of mortality. The court having fully instructed the jury that they were to take into consideration lost time and irregularity of income, feebleness of health, actual sickness, loss of employment, voluntarily abstaining from work, dullness in business, reduction in wages, and increasing’ infirmities of age, there was no error in charging the jury as follows: “Having arrived at the yearly loss, as indicated above, you can multiply the amount so
There is no merit in the exception to the charge that the cash value may be arrived at by dividing the gross amount by $1, plus interest on $1 -at 7 per cent, for the plaintiffs expectancy of life. The complaint is that the instruction lays down an incorrect rule for determining the cash value, especially because allowance must be made for increasing years, feebleness of health, sickness, loss of employment, etc. As we have already pointed out, the judge had already instructed the jury to make deductions and allowances for these matters. In the extract excepted to, the court referred to a gross sum, but this sum was to be arrived at by considering all of the contingencies and reductions which had been referred to by the court in connection with the expectancy of life. The instruction, properly construed, means the annual income and the average expectancy, both diminished by the various contingencies pointed out in the charge. The same instruction of which complaint is here made was given in the case of Savannah Electric Co. v. Bell, 124 Ga. 668 (53 S. E. 109), and was approved as a correct rule for estimating the present value of a sum payable in the future, tlie court citing Kinney v. Folkerts, 84 Mich. 816 (48 N. W. 283). But even if the instruction complained of is not technically correct, it would afford no ground for a reversal, for the reasons stated in tlie Corcoran case, supra.
The error complained of in the 8th ground, if an error at all, appears harmless when the assignment is considered in connection with the note of the presiding judge, and when the excerpt from Murray’s testimony is read with its context. In approving this ground the judge says that the 8th ground is approved with the qualification that the plaintiff expressly disclaimed that the statement narrated by the witness as having been made to him by Martin Fifer was introduced for the purpose of establishing the truth of the
Upon a review of the whole case we are satisfied that the trial was without error, and that the result of the case turned solely upon the credibility of the witnesses. There was, therefore, no error in refusing a new trial. Judgment affirmed.