74 Ga. 737 | Ga. | 1885
The defendant in error sued the plaintiff in error for the homicide of her husband, who was an engineer on its road, running one of its trains, when the incident occurred. It seems that, in consequence of a feeble engine on one of the freight trains running on the same schedule that the train of which Crosby, the defendant in error’s husband was the engineer, w5,s also running, all the freight trains got out of their regular order, and got on the same schedule on which a passenger train was running; that an accident happened to this passenger train, causing it to lose or break a coupling-pin, and thus delaying it between Gordon and Griswoldville, and that Crosby’s train ran into it while thus delayed, and he was killed.
The jury returned a verdict for twelve thousand dollars; a motion was made for a.new trial; the counsel of plain
My own opinion is that, where the presiding judge shows, in the reasons which he gives for refusing a new trial, that he was influenced by this act of counsel, the plaintiff in error was hurt. The probabilities are that the new trial would have been granted by the presiding judge, if the reduction had not been made by the counsel; for he ■hesitated and doubted much about the case, and that hesitation settled into a determination to'refuse the new trial, when he considered this unauthorized reduction, as his opinion in the record clearly shows to my own mind. Therefore I think that the plaintiff in error thereby lost its case; for if a new. trial had been granted below, it would have been affirmed here. Moreover, T think that even the court below has no power to order the reduction of damages in a case like this, or to make the grant of a new trial depend upon such reduction being made; be
The uncertainty of life — the mere expectancy of its duration — the approach of age — the decline of strength— the hazard of so hard a life, so much exposed and worn— the uncertainty of employment — all these and many more considerations move a jury in estimating damages according to law, and no human being can tell what aliquot part is not supported by evidence and ought to be written off.
My brethren, however, differ from me in their views, and when I write the opinion, affirming this judgment, I am but their organ. They hold that this case, on the matter of a fixed criterion for damages is unlike Savannah, Florida and Western Railway vs. Harper, 70 Ga., 119; that in that case there was no fixed criterion for estimating damages; whereas, in this case there is, inasmuch as the Carlisle table of the expectancy of life fixes a recognized criterion for measuring damages when used in connection with' the annual proceeds of the husband’s labor; and therefore they hold that this case is not controlled by that; and that, as damages could be measured by this criterion, and as, in their judgment, the counsel had the right to write off any part of the damage and plaintiff in error could not complain, because not hurt by making the verdict against it less, they hold the plaintiff in error not entitled to a new trial on this ground.
Besides, if it did, it would not be a good plea of justification, because the general issue of not-guilty would admit all the evidence which plaintiff in error could introduce under the alleged plea of justification. Chapman vs. A. and W. Pt. R. R., this term.
The reasoning of the Supreme Court of Wisconsin, in Cottrell, adm’r, vs. The C. M. and St. P. Rwy. Co., 47 Wis. R., 634, strikes us with great force, and the great principle of public policy alluded to above cannot be better enforced and illustrated than by citations from the opinion of that court in that esse.
The court there say: “The very employment of the locomotive engineer, with its manifold and sudden and unexpected dangers, requires the highest type and best qualities of true manhood, invincible bravery, and great integrity . . . They are placed in charge of one of the mighty forces of nature, held in servitude by tho most dangerous and intricate machinery, and great skill, unremitting attention, sleepless vigilance and fearlessness of danger are required to keep them in constant control.The question which should determine their reasonable care or want of care is, how careful and prudent locomotive engineers would ordinarily and commonly act
The facts of that case are quite similar to this. There,; as here, the fireman jumped and saved his life. There, as here, there was imminent danger of a collision. There, as here, it did occur, and the engineer was killed, with hand •on throttle, trying to check and control his powerful machine. There the decision is squarely that the defence’ was untenable. And we hold, with that court, that it must be clear, from the facts, that the engineer could not, with •any degree of probability, be of service at his post, before •courts should hold it want of common care for him to brave danger and stand at his post.
Judgment affirmed.
Ante, p. 547.