25 Ga. App. 615 | Ga. Ct. App. | 1920
Lead Opinion
The evidence adduced in behalf of the plaintiff tended to show substantially the following facts: Her husband, with his young son, was walking from their home in East Thomaston along Thompson street into the City of Thomaston. It was the first time they had passed along this street. The right of way of this public street was 30 feet wide, and within it a roadway 18 feet wide had been opened up and laid out. No sidewalk had been constructed, but within the right of way and along the elevation of’ a slight embankment there was a well-defined and beaten pathway, used by pedestrians and the public generally. Along and by the side of this pathway was stretched a line of poles on which were strung two wires. The city had at a previous time maintained from its municipal light system an arc-light out at the end of this line of wire, near a residence which' had been there, but, the residence having been burned, this light had been discontinued for some three or four years and the line of wire referred to had not- thereafter been made use of in any way. The insulation had become worn and rotten and the wire had become exposed. Some three months previous to the date of the homicide one of the posts on this line was blown nearly over, away from the street, so that, as left leaning, its top stood but a few feet above the ground. Soon thereafter and several weeks or months prior to the date of the homicide the electric wire had pulled away from the post, and, with the wooden knob and glass insulator by which it had been attached to the post, remained hanging along and over the said path and 'at the place referred to, only some three to five feet above the same. When the deceased, accompanied by his nine-year old son, walking in the path, had reached the point referred to, the father, thinking the wire was a telephone wire, took hold of the knob left hanging on the wire, and explained to his son how it was fastened to the pole. After doing this without injury, he advanced a few additional steps forward in the path, and, in order to lift the sagging wire out of the path,
The defendant denied the existence of the defined public pathway referred to. It sought to show, both by oral testimony and by photographs taken a day or two after the homicide, that the wire, though sagging, hung well above the head of the decedent when walking or standing; that he voluntarily left the roadway in which he and his son had been traveling, and met his death by deliberately reaching up and catching hold of what he supposed was a telephone wire, in order to show his son how it had. been attached to the pole, or that in thus pulling it down he temporarily lowered the wire, which was the occasion of his thereafter catching hold of it after taking a few additional steps forward; which act it is contended was in any event negligent 'and unnecessary, as he could easily have avoided the wire by walking out of the path and around it.
It will be noted that according to the evidence for the plaintiff, the deceased did not meet his death in voluntarily catching hold of the wooden peg, in order to show his young son how it had had been fastened to the pole, but.had left this point, was con-
In the instant case one of the contested issues relates to the amount of the defendant’s liability, if any. The deceased was 38 years old, with an ordinary or average expectancy of nearly 29 years. He was earning at the date of his death $1.25 per day. On the basis of such average expectancy and of continued like earning capacity, an application of the rule would have resulted in a verdict of about $125,000. The defendant in error says that the rule was therefore manifestly disregarded. But there was medical testimony to the effect that plaintiff was afflicted with an incurable malady, which would necessarily have terminated his life within a period of two or three years. It was within the right of the jury, if they saw proper to do so, to accept this testimony. It is consequently argued by counsel for the plaintiff in error that the verdict rendered, for $5,000, might have been arrived at by an application of the erroneous rule above stated, and that there is no means by which it can be shown that such was not the case. In support of this argument they contend that if the jury did in fact accept the medical testimony
. Judgment affirmed.
Dissenting Opinion
dissenting. I cannot agree with the rulings of a majority of the court. The only eye-witness to the accident was the son of the deceased, and this son was a small boy. His testimony was very uncertain and contradictory. The great weight of the testimony tended to show that the deceased was a volunteer, and that the' electric wire which caused his death was not in fact hanging over the road or path along which he was traveling, but was up on an embankment beside the path and could not be reached from the road. In view of these facts 'and the further fact that the verdict was quite large, I am of the opinion that the error of the court in charging on the mortality tables incorrectly, this being admitted by the presiding judge, is such as to require a reversal. It is possible, if not probable, that some member of the jury was misled by this erroneous instruction.