Mary B. Harper, as administratrix of the estate of Cooley W. Harper, brought an action in the city court of Atlanta against the Southern Railway Company for the negligent homicide of her intestate, who was killed in a wreck of its train while he was riding thereon in the service of the government as a railway mail clerk. The defendant received consideration from the government for his carriage. The action was based upon section 2486 of the Code of Alabama, in which State the homicide occurred, providing as follows: “A personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission or negligence of any person, or persons, or corporation, his or their servants or agents, whereby, the death of his testator or intestate was caused, if the testator ox intestate could have maintained an action for such wrongful act, omission or negligence, if it had not caused death;'such action shall not abate, by the death of the defendant but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such actions must be brought within two years from and after the death of the testator or intestate.”
It is alleged that there was a curve upon the railroad-track at the place where the train was derailed, and consequently wrecked, and that the defendant’s negligence consisted in the operation of the train at that place at the rate of 60 miles per hour and in failing to maintain its roadbed in proper condition. The plaintiff recovered a verdict for $20,000. The defendant made a motion for a new trial, pending which the plaintiff voluntarily wrote off $5,000. Thereafter the motion was overruled, and the defendant
Each of the points insisted upon will be examined in the light of the construction which the courts of Alabama have placed, upon the statute on which the action was based. The plaintiff in. error urges that this is proper, and cites as authority a number of decisions by the courts of that jurisdiction. It was held by the Supreme Court of that State in Richmond & Danville R. Co. v. Freeman,
The plaintiff was allowed to testify that the decedent was in “perfect health,” over objection of the defendant that the evidence'was irrelevant and immaterial, the court saying: “I will leave that in; that may tend to illustrate his conduct, if it gets involved in the ease. I don’t know whether it will or not.” In view of the construction which must be placed upon, the Alabama statute, the objection was well taken. “In an action under [the section of the Alabama code set out above], providing that the personal representatives of one killed by a wrongful act may recover such damages as the jury may assess, evidence of the age, physical and mental condition, earning capacity, and occupation of deceased, and the amount contributed by him to the support of those dependent on him, was properly rejected as irrelevant, since the act is not compensatory, but punitive, in its nature.” Louisville & Nashville R. Co. v. Tegner,
Again, the admission of evidence which is merely irrelevant and immaterial is not ground for reversal “unless a reasonable likelihood of a prejudicial effect appears.” Watkins v. Woodbery, 24 Ga. App. 80 (2) (
Error is assigned upon'the admission of evidence that the car in which the decedent was killed was a wooden car, upon the ground that the same was irrelevant and immaterial, and that the plaintiff had not alleged negligence in the use of such a car. There were other cars in the train, of steel structure. The plaintiff alleged that this particular coach was “crushed into splinters,” and insists that merely by reason of this allegation the evidence was admissible, on the idea that allegations made and not stricken may be proved irrespective of their relevancy. See, on this ques
Another ground of the motion for a new trial complains that the court erred in admitting testimony of the witness Holland, that there were other passengers on the train besides the decedent. The plaintiff alleged that the decedent was killed upon a passenger-train, and that the defendant was negligent in running this train at the speed of 60 miles per hour over a defective track. Were the jury in their discretion not authorized to find that the wrongful quality in the specific negligence alleged was greater where it directly affected the defendant’s duty to a number of persons than where it affected its duty to but one? Would the same neglect of the track, and the same speed, not be more serious if the train were filled with passengers than if the cars had been empty or it had been a freight-train? We think these questions can only be answered in the affirmative. But assuming that the statute seeks to punish the defendant’s negligénce only as it related to the decedent, we still think the admission of this evidence was not cause for a new trial. The witness testified without objection to the fact that the train was a passenger-train running from Jacksonville, Florida, to Kansas City, Missouri, known as No. 7. That it was a passenger-train was testified by another witness without objection. It would be inferred from the nature of
It is also complained that the court erred in admitting testimony that some of the cross-ties were decajred and the track in bad condition in front of the wreck. It appears from the record that the witness was testifying to a condition in the vicinity of the place where the train was derailed, commencing immediately in front of the engine and extending forward approximately 500 feet. The plaintiff could show the defective condition of the track not only at the place of the,accident, but in the vicinity on either side thereof, as corroborative. Ohio Valley Ry. Co. v. Watson,
The court charged the jury as follows: “So the question of the amount of the damages is left to the jury, and the rule under which you will ascertain the amount is this, the purpose of the statute being the preservation of human life, regardless of the pecuniary value of a particular life to next of kin, under the statute of distributions, the admeasurement of the recovery must be by reference alone to the quality of the wrongful act or omission, the degree of culpability involved in the doing of the act, or in the omission to act, as required by the dictates of extraordinary care and prudence, and without any reference to or consideration of the loss or injury the act or omission may occasion to the living” This excerpt is assigned as error upon the ground that it required that the negligence which the defendant might be guilty of should be measured in part by the standard of extraordinary care owing by the defendant to the decedent, and in this way enhance the culpability attributable to the defendant in' proportion to such care; whereas the defendant’s blamability “either in degree, kind, or quantity could not be tested by a reference to the degree of care which it may have owed,” and that the reference to extraordinary
No Alabama decision directly in point has been cited. We believe that the courts of that State, however, would hold that where there is a duty of slight care, or ordinary care, a breach of the duty would not be so culpable as a breach of the duty of extraordinary care. If there were no duty at all, there would be no negligence. The higher or more exacting the duty, the greater is the degree of negligence in its breach. The greater the degree of negligence, the more culpable it is. In our opinion the charge was sound both in logic and in law.
It is conceded that the decedent was a passenger. No statute of the State of Alabama being pleaded or shown upon the subject, it will be presumed that the common law prevails in that State as to the degree of care owing by a carrier to its passengers. Hill v. Chattanooga Ry. & Light Co., 21 Ga. App. 104 (1 b) (
Finally, it is insisted that the verdict was excessive. “Where pending a motion for new trial by the defendant to set aside a verdict for damages consequent upon personal injuries received by the plaintiff, the latter by his counsel voluntarily, and without any suggestion from the court, reduced the verdict by writing off therefrom a certain sum, and the trial judge subsequently overruled the motion, but it does not appear that his refusal of a new trial was influenced by such reduction of the verdict; and where this court cannot say that the verdict as originally rendered by the jury was so excessive as to lead the court to suspect bias or prejudice on the part of the jury, the judgment of the court refusing a new trial will not be reversed on account of such volun
Certain cases founded upon the same statute as this one are cited by the plaintiff in error in which the Supreme Court of Alabama affirmed the grants of new trials by the lower court on the ground that the verdicts were excessive. These cases, of course, do not show that the refusal of a new trial upon such ground would have been reversed. In Montgomery Light & Water Co. v. Thombs,
The plaintiff in error filed no pleadings and made no proof in the trial court as to the construction which the Alabama courts have placed upon the statute invoked in this case, and we have merely assumed with it that the decisions by those courts should be binding upon us in the construction of such statute, rather than persuasive only. But see Georgia &c. Ry. Co. v. Sasser,
We cannot say that the verdict as “originally rendered” was so excessive as to lead to the conclusion that it was induced by prejudice, bias, or mistake on the part of the jury, and the judgment refusing a new trial will not be reversed on account of the voluntary reduction of the verdict.
Judgment affirmed.