10 Ga. App. 531 | Ga. Ct. App. | 1912
Parham sued the Southern Railway Company for injuries sustained by him on alighting from a train, joining as co-defendant the conductor of the train, and recovered a verdict for $3,750. The defendants’ motion for a new trial was overruled, and the case is here for review. The evidence in behalf of the plaintiff is, in substance, as follows: On the date alleged in the petition the plaintiff went to the depot of the railway company at Dewy Rose, a station in Elbert county, for the purpose of assisting a lady and her two little children, who intended to take passage on the train. It was night, 'and one of the children was asleep, and the plaintiff took the child in his arms into the ear. The train stopped a shorter length of time than usual, and before the plaintiff could place the sleeping child on a seat, the train started, although he acted with all possible promptness. When the train started, the plaintiff, after
The evidence for the defendants conflicts sharply with the evidence of the plaintiff, both as to how the accident occurred and as to the extent of the injuries received. The conductor testified, that he did not see the plaintiff, did not know that he had gotten on the train for the purpose of assisting passengers, did not give the plaintiff any direction to cross from the platform of one coach to the platform of another, or to get off at that point, and did not curse the negro porter, and, in short, contradicted every statement made
1. It is insisted by the plaintiffs in error that even conceding the truth of the evidence in behalf of the plaintiff, the verdict is contrary to law, because it shows such negligence on his part as would preclude him from a recovery; that his act in getting off the moving train in the dark was so obviously dangerous that he was not relieved from negligence in attempting to do so, even under the directions given him by the conductor. It is contended that to get off a moving train in the dark and at a place other than the platform or regular place of getting off is per se such an act of negligence as would in any event prevent a recovery. Many cases are cited from the Supreme Court of this State in the elaborate brief of counsel for plaintiffs in error, which it is claimed sustain, this view of the law, some of them being Jones v. Georgia, Carolina & Northern R. Co., 103 Ga. 570 (29 S. E. 927); Barnett v. East. Tenn., Va. & Ga. R. Co., 87 Ga. 766 (13 S. E. 904); W. & A. R. Co. v. Earwood, 104 Ga. 127 (29 S. E. 913); Whatley v. Macon & Northern R. Co., 104 Ga. 764 (30 S. E. 1003); Roul v. East Tenn., Va. & Ga. R. Co., 85 Ga. 197 (11 S. E. 558), and many others. It would be unprofitable to consider, each one of these cases. It is sufficient to say that we have examined each one and find that none of them sus
2. A medical expert, introduced by the plaintiff, testified as to the character and extent of the plaintiff’s injuries. The defendants introduced a witness by whom they sought to impeach and discredit this medical expert by showing that on a previous occasion he had examined this witness and had stated that the witness was suffering from spinal concussion or “railway spine,” the same diagnosis which the expert had made of the plaintiff’s injuries, — when in fact the witness had never been in a railroad accident and had never suffered from any spinal trouble. This testimony was excluded by the court. We hardly think that the value of the testimony of a medical expert can be impeached by instances of special cases in which he might have been mistaken in his diagnosis. To hold this, it seems to us, would bring in issue the question as to whether in each particular case the diagnosis was correct or incorrect. The correct rule is laid down by Mr. Wigmore, in his work on Evidence, Vol. 2, p. 1148: “Proof of such particular instances of error by other witnesses is generally regarded as inadmissible, and for reasons analogous to those of the character rule, namely, confusion of issues by the introduction of numerous subordinate matters, controversies involving comparatively trivial matters, and unfair surprises by leaving the impeached witness unable to surmise the tenor or the time of the supposed conduct which might be attributed to him by false testimony.” While it might strike the ordinary mind that a medical expert could not be safely relied upon in his diagnosis, where he had stated upon an examination that a person was suffering from spinal concussion or “railway spine,” when in. fact the person had never been the victim of any railroad accident, or had never suffered from any spinal complaint, and while it might be argued that this medical expert, in making a similar diagnosis of the plaintiff’s injuries, was indulging somewhat in a fad or a favorite theory, yet it must be manifest to any thinking mind that it would be unsafe, as well as unjust to the medical expert, to allow such special method of attack, unless at the same time
3. In support of the medical expert who testified in behalf of the plaintiff, testimony, to which the defendants objected, was admitted, to the effect that the expert had held many positions in different sanitariums and hospitals where he had had extensive experience in medicine and surgery. One of the methods of proving expert knowledge is to show expert opportunities and experience, and clearly the testimony was admissible for this purpose.
4. Two of the grounds in the amended motion for a new trial assign error upon the charge of the court to the effect that the railway company was under a legal duty to allow the plaintiff a sufficient time in which to get off the train, after Ms intention to leav.e had become known to the conductor. It is contended that this charge was hurtful to the defendants, and was not on any one of the issues made by the pleading, as no negligence was alleged in this ' respect. An inspection of the brief of evidence discloses that the defendants contended that the plaintiff did have time to get off the train, and that the railway company in this respect performed its duty; and this testimony was met by the plaintiff by showing that he was not given sufficient time in which to get off. No objection to the introduction of this evidence was made by either side on the ground that it was not covered by'the pleading. The judge stated a correct abstract principle of law, and, while the instruction was not required by the pleading, it was based on evidence introduced on both sides. Consequently it was not reversible error to charge on the subject, and certainty the defendants should not be heard to complain that the charge covered an issue which they had injected by their evidence. However, the court subsequently instructed the jury that the plaintiff could only recover upon the allegations of negligence made in the petition.
5. Objections are made to instructions of the court as to the presumption against a railroad company on proof of injury, and to the failure to charge that this presumption did not arise 'against the individual defendant. As to the railway company the charge
As to the objection that the court did not instruct the jury that this presumption did not apply to the individual defendant: The court did tell the jury that it applied to the railway company, and, under the maxim expressio unius est exclusio altering, this was in effect telling the jury that it did not apply to the individual defendant. In the usual general statement made in the charge on the subject of presumption, the court did charge the jury the general rule that the burden was upon the plaintiff to make out his case against the defendants, and the only exception stated was the presumption against the railway company. Assuming that the jury were men of ordinary intelligence, they must have understood, from this statement and the exception, that the presumption applied only to the railway company, and not to the individual defendant. How
6. The following excerpt from the charge is objected to: “If you are in possession of facts that will authorize you to estimate in dollars and cents any branch of injury received, the loss of ability to work or otherwise, you can fix that amount at whatever the testimony authorizes for damages along that line.” It is objected, that this charge did not present to the jury any fixed and certaip. rule by which the damages should be estimated, and, in elaborating this ground of the motion, learned counsel insist that it was the duty of the judge to charge as to the use of the mortality and annuity tables, and that the judge erred in failing to charge as to reducing to its present value the plaintiff’s entire future loss. It has been held by the Supreme Court that the jury, in estimating damages, are not compelled to use the mortality and annuity tables, and the court is not required to give them in charge unless requested. In the standard charge prepared by the Supreme Court in Florida Central & Peninsular R. Co. v. Burney, 98 Ga. 1 (26 S. E. 730), it is expressly stated that these tables are not binding on the jury. The jury are at liberty, in estimating the. damages, to use the result of their own observation and experience, aided by the testimony as to the extent of the injuries and the resulting damages. R. & D. R. Co. v. Allison, 86 Ga. 145 (12 S. E. 352, 11 L. R. A. 43); Southern Ry. Co. v. Scott, 128 Ga. 244 (57 S. E. 504). The size of the verdict in the present case would indicate either that the jury did in fact reduce the future damages to present value, or did not consider the question of permanent damages at all. Without a more specific request to charge on the subject of damages, the general charge as given was not prejudicial.
7. After the court had concluded the charge to the jury and had directed them to retire and make up their verdict, counsel for the plaintiff arose, and in the presence of the jury suggested that a certain portion of the charge, according to the practice in the United States court, be corrected, whereupon the judge sent the jury out, and, after an argument in regard to this part of the charge, had them return, and corrected his charge on the subject of punitive damages, distinctly and expressly withdrawing from their consideration this portion of the charge, as not applicable to the case, under the evidence. Of course, this .part of the charge was inappli
8. The court admitted, over objection of the defendants, the evidence of the plaintiff’s wife that after his injuries had been received he was heard to “moan and groan” frequently during his sleep. It is objected that this testimony was irrelevant, and that the moaning and groaning took place long after the accident. It has been held that involuntary exclamations of pain made soon after an injury has been received are to be regarded not as self-serving declarations, but as symptoms, and are admissible in evidence. Georgia Ry. & Electric Co. v. Gilleland, 133 Ga. 621 (66 S. E. 944). It would seem to follow that as long as the injured person was still suffering from the effect of injuries which he had received, any involuntary exclamation made by him, indicating that he still suffered from the effects of such injuries, would be admissible for what they were worth. Whether the moans and groans of a man in his sleep are caused by pain due to physical injuries or not, it certainly can not be claimed that they are in any sense self-serving declarations. They would seem to be more in the nature of subjective symptoms of physical suffering. Certainly, where the evidence is clear, irrespective of this moaning and groaning while asleep, that the plaintiff had incurred injuries of a severe character, it would be absurd to grant a new trial on the ground that the court had erred prejudicially in admitting evidence of these involuntary exclamations made by the plaintiff while asleep.
We have examined the record very carefully in connection with all the assignments of error, and we find no reason for reversing the judgment refusing another trial. Judgment affirmed.