Defendant Southern Railway appeals a FELA judgment entered on a jury verdict for plaintiff Minor in the amount of $275,000. Four grounds of error are asserted: 1) charging plaintiff’s requested instruction on assumption of the risk; 2) overruling defendant’s objections to a doctor’s deposition; 3) striking a juror for cause; 4) denying defendant’s motion for new trial predicated on excessive damages awarded by the jury.
On July 6, 1983, Minor was working as a “crankhand” for Southern Railway. He had to bend over in order to make curve elevation readings. He heard his supervisor shout a warning and turned to see what was happening when he was struck by a hy-rail truck. The force of the blow propelled him several feet in the air. He landed in the ballast and then rolled down the embankment. Liability was contested, but the primary issue was whether Minor’s condition at the time of trial was the result of this on-the-job accident or was caused by other factors.
1. Southern contends that there was no evidence as to assumption of the risk and thus a charge that such principle was inapplicable in a FELA case was error. This belies the ruling in
Atlantic Coast Line R. Co. v. Smith,
2. Southern made pre-trial objections to a physician’s deposition which was to be, and was, utilized at the trial. The principal thrust of its arguments was that portions of the doctor’s opinion testimony were based on hearsay because he relied on reports containing other physicians’ opinions. See
Mallard v. Colonial &c. Ins. Co.,
Two pertinent principles are applicable. 1) “ ‘Where a portion of the evidence is admissible and a portion inadmissible, objection to the evidence as a whole which does not limit itself to objectionable parts is insufficient.’ ”
Armstrong v. Vallion,
Grounds (a), (b), (c) and (d) are all based on pre-trial objections of inadmissible hearsay to certain deposition testimony. In each instance the trial court weeded through and excluded those parts which it believed to be based upon hearsay. Southern made no further objection at trial. The testimony does not reveal that it was based solely on hearsay and thus was not subject to the general objections contained in the record. Contrary to Southern’s contentions there was testimony that the doctor diagnosed a degenerative disc condition from his examinations and x-rays. The specific arguments made now by Southern were not offered below. These grounds reveal no reversible error.
Ground (e) recites the basis of objection as “speculation.” The testimony that lifting would aggravate Minor’s back problem was within the ambit of the doctor’s expertise and appropriate in view of the diagnosis of a back problem based upon the doctor’s prior examinations.
Ground (f) involves an objection that the testimony as to the possibility of back surgery was speculative and irrelevant. The doctor clearly stated that back surgery was not planned and would become necessary only if Minor was so disabled by pain that there was no alternative for him. Southern states that the trial court did not present the issue of future medical or wage loss to the jury. Southern has not carried its burden of showing not only error but harm.
Pope v. Propst,
Under ground (g), testimony about a discogram was objected to on the basis of form of question and answer. This has been abandoned and Southern argues that it was irrelevant. Such argument, not having been raised, fails.
3. A juror on voir dire admitted that he had issued life insurance covering counsel for defendant; that he serviced the policy and receives two percent of the premium paid. The trial court struck him for cause over defendant’s objection. Defendant contends that it was forced to use a peremptory strike to remove another juror who was *185 subsequently placed on the panel.
In order to insure impartiality of prospective jurors (see
Whitlock v. State,
Furthermore, while a party is entitled as a matter of right to an array of impartial jurors to which peremptory challenges may be directed, “a party is entitled to no more. Having no legal right to a jury which includes those who because of scruple or bias he thinks might favor his cause, he suffers no prejudice if jurors, even without sufficient cause, are excused by the judge. Only if a judge without justification overrules a challenge for cause and thus leaves on the panel a juror not impartial, does legal error occur. . . . The entitlement of a party extends only to a fair and impartial jury; the right to reject, not select.”
Jones v. State,
4. The last enumeration of error is that the jury verdict of $275,000 was excessive in view of the fact that Minor only established about $3,000 in special damages. The remainder of the amount awarded must rest upon pain and suffering.
Questions as to the proper measure of damages in FELA cases are governed by general principles of law established by the federal courts.
Seaboard System R. v. Taylor,
It is often noted that Georgia has a standard of review consistent with that of the federal judiciary.
CSX Transp. v. Darling,
189 Ga.
*186
App. 719, 721 (1) (
Under the whole court decision in Darling (to which the author dissented), the amount of compensation for pain and suffering is a matter left within the virtually exclusive province of the jury. When there is no direct proof of improper cause, the issue of excessiveness is, by law, governed by judicial subjectivity in a realm absent objective criteria.
Judgment affirmed.