47 Ga. App. 629 | Ga. Ct. App. | 1933
Lead Opinion
The court did not err in overruling the motion for a continuance upon the ground of the absence of a witness, where it was not made to appear to the court what the movant expected to prove by the witness, and where it appeared that the witness lived in another county and had not been served with subpoena. Civil Code (1910), § 5715. A recital in a motion for a new trial excepting to the overruling of a motion for continuance, that the movant expected to prove certain things by the absent witness, is not a compliance with this code section.
Counsel for the railroad company contends that the court erred in charging the jury as follows: "If you find from the evidence that the decedent, S. K. Bennett, was the husband of the plaintiff, Mrs. Lena Nellie Bennett, and that on the day named in the petition, while crossing defendant’s track at Moon’s crossing in Cobb county, Georgia, S. IC. Bennett was run upon and killed by a train being operated upon and over the defendant’s tracks with the consent of the defendant, and if you believe the defendant, through the agents and servants in charge of said train failed to blow the whistle of said locomotive two long and two short blasts, loud and' distinct, at intervals of five seconds each, or that after reaching a point within four hundred yards of said crossing the engineer and fireman failed to keep and maintain a constant and vigilant lookout on said track ahead of said engine and to otherwise exercise due care in approaching said crossing, in order to avoid doing injury to any person or property which might be on such crossing, then I charge you that the plaintiff would be entitled to recover damages in this case, unless barred of recovery by some other rule of law given you in charge in this case,” in that it authorized the jury to find for the plaintiff upon proof of such negligence on the part of the defendant, regardless of whether the same caused the death of her husband, and that the court should have qualified said charge to the effect that such acts of negligence on the, part of the defendant, in order to entitle the plaintiff to recover, would have to be the proximate cause of the death of her husband. The plaintiff contended in her petition that the defendant was negligent in the above particulars. After fully stating the contentions of the parties as evidence in the pleadings, the judge in a previous portion of his
A charge of the court, that the law provides that a wife may recover as damages for the homicide of her husband the full value of his life as shown by the evidence, states in substance a correct
The court having instructed the jury as to the rule for reducing the amount found as the full value of the life of the deceased where his negligence was a contributing cause, and as to a reduction to its present cash value of the amount so found, a charge that the jury, if they found the defendant liable, should proceed to assess the damages according to certain rules given in charge should they find the defendant was liable for full damages, was not error as depriving the defendant of the right to have the gross value reduced to its present cash value.
A charge that the jury, in arriving at the present cash value of the services performed by the decedent throughout the time of his life-expectancy, should be “such sum as, put out at interest at 7 per cent., would produce a sum every year equal to what the services of decedent were worth, and by exhausting a part of said sum every year the sum would produce every year such sum as his services were worth throughout the expectancy and to be exhausted at the end of that expectancy,” is not, by reason of the statement that the jury should “give such sum as put out at interest as 7 per cent, would produce a sum every year equal to what the services of the decedent were worth,” where the court elsewhere in-the charge correctly instructed the jury upon the method of computing by the mortality tables the present cash value of the services .of the deceased, subject to the objection that it instructed the jury to find for thé plaintiff such an amount as principal as would produce at
The court having sufficiently instructed the jury that the plaintiff could not recover unless the defendant’s negligence was the proximate cause of the homicide, and that if the deceased, in the exercise of due care, could have discovered the negligence of the defendant, if any existed, and could by the exercise of due care have avoided the negligence of the defendant after having discovered it, the plaintiff could not recover, written requests to charge which embodied these principles were covered by the charge given, and the failure to give such requested instructions was not error.
It being provided by statute, as contained in Ga. L. 1918, p. 212 (section 2677 (2) of the Michie Code of 1926), that a railroad company shall, along its line, at a designated distance from a public crossing, erect a blow-post “to indicate the direction of such crossing,” a charge to the jury that the law requires a railroad, company to erect a blow-post “to instruct” the direction of such crossing was a mere inaccuracy and not a substantial misstatement of the meaning of the statute. It was not calculated to influence the jury in a manner harmful to the defendant. Savannah Electric Co. v. Mullikin, 126 Ga. 722 (55 S. E. 945); Southern Railway Co. v. Merritt, 120 Ga. 409 (47 S. E. 908); Pike v. State, 121 Ga. 604 (49 S. E. 680); Wilson v. Small, 28 Ga. App. 587 (113 S. E. 238).
The evidence authorized the verdict for the plaintiff.
Judgment affirmed.
Dissenting Opinion
dissenting. I agree to all but paragraph 2, and from this I dissent. Where the court, immediately after charging the jury that the law requires the engineer of a railroad-train, when arriving at tíre blow-post required to be erected at a designated distance from a crossing, to blow the whistle in a described manner, and to maintain a constant and vigilant lookout along the track
Since it does not appear conclusively and as a matter of law