130 Ga. 696 | Ga. | 1908
Edgar S. Wright brought suit for damages against the Georgia Southern & Florida Railway Company, on account of an injury resulting in the loss of his left arm. He .recovered a verdict for $10,000. A motion for a new trial was made by the defendant, which was overruled, and the defendant excepted.
The petition alléged and the evidence showed that the plaintiff’s arm was crushed by being run over by the defendant’s train, necessitating amputation of the member. Eeference to a shock to his system was therefore not without- foundation.
The charge quoted is inaccurate in its mode of expression. The expression “actual damages” is not necessarily limited to pecuniary loss, or loss of ability to earn .money. Some of the decisions treat it as including damages by reason of pain and suffering. Head v. Georgia Pacific Ry. Co., 79 Ga. 358, 360 (7 S. E. 217, 11 Am. St. R. 434) ; Mabry v. City Electric Ry. Co., 116 Ga. 624, 625 (42 S. E. 1025, 59 L. R. A. 590, 94 Am. St. R. 141). It may have confused the jury to instruct them that they might award “those damages” in addition to “actual damages,” without informing them what was meant by the latter expression. After having -referred
In the Georgia Cotton Oil Company case the plaintiff testified before the jury as a witness. He was 38 years of age, had always had good health, always had good work, and was never without a job before the injury. At the time of the injury he was employed by the defendant at a machine called a “former” and was earning $1 per day. Four of his fingers were crushed. He could not use his hand for ten months. Since then he had not been able to do much, and had only earned $12. He recovered $988. Held, error to charge as to reasonable, prospects of increased earnings.
In the Southern Railway case the plaintiff testified before the jury as a witness. He was 29 years of age, was in good health, was a public drayman, had been so engaged about a year and a
In the case at bar the plaintiff testified before the jury as a witness. He was 24 years of age. His health was good — 'as good as he ever had (though whether that was good or bad does not positively appear). Lost left arm. He was working as a flagman; earning $67 and $70 per month; had formerly been a retail clothing salesman; since the injury had secured a place as traveling salesman at $45 per month and expenses when traveling; had held it about a month. Verdict, $10,000.
A comparison of the evidence in the three cases will show more on the subject in each of the other two than in this one. A unanimous bench held that there was no evidence in either to authorize a charge on the subject of prospects of increased earnings, and that such charge was error. Cases of injuries and the measure of damages to children are not here involved.
It does not require much evidence on the subject to authorize a charge of the character'of the one here given; but it requires some. In the case of Southern Ry. Co. v. Scott, supra, there was some discussion touching’ the common and ordinary course of human life and death, as known to all men, and the specific question of a charge referring to evidence of a reasonable prospect of increased earnings on the part of the plaintiff.
In the case of Central of Georgia Ry. Co. v. Minor, 2 Ga. App. 804 (59 S. E. 81), the Court of Appeals drew a distinction between the expression "earnings” and "earning capacity,” and between "prospects of increased earnings” and "probabilities of an increase of earning capacity.” Without entering into a consideration of the distinction there drawn, it is sufficient to say that the charge then under consideration was different from that before us. Moreover, the evidence was very different from that in the present case. The official report shows that there was evidence that at the time of his.death the deceased was 26 years
In the present case we have carefully considered the evidence, the entire charge, and the verdict. From such an examination we can not say that these somewhat confused- and erroneous. charges together were harmless, or did not probably affect the jury in fixing the amount of damages. As the case is to be returned for a new trial, we think it best not to enter into a discussion of the reasons, for this statement, or of the evidence, or the verdict. Let the casabe again tried and with a charge free from these faults.
The charge set out in the second ground of the amended motion, and to which exception was also taken, was hardly subject to the criticism made on it.
Judgment reversed.