28 Ga. 111 | Ga. | 1859
By the Court.
delivering the opinion.
Was the court right in overruling the motion for a new trial?
The ground on which the exclusion of this evidence was put, as we infer from the argument, was, that if such a rule existed, there was better evidence of it, viz : written evidence of it in the “order books” of the Road. And what was relied on in support of the ground, was the 7th section of the act of 1850, “to provide for the collection and safe keeping of the revenues” of the road, “to punish those who” might “attempt to defraud the same, and for other purposes.” (Cobb, 419) That section is as follows:
“The Governor and chief engineer be and they are hereby authorized and empowered, to adopt such rules and regulations for the government and management of said road, as they may deem conducive to the public interest, not inconsistent with the constitution and laws of this State, which shall be recorded from time to time, as they are adopted, in one or more order books to be kept for that purpose.” Does this section sustain the ground? Does it show that the rule, if it existed, must have been on record in some “order book or book” of the road ?
We think that it does not, and for two reasons. First, although the section says, that the “rules” which the Governor and chief engineer may adopt, shall be recorded in an order book or books, it does not say, that they must adopt auy rules. It goes no further than to authorize them to adopt rules. And it might well be, that the rule in question existed at the date of the act, and that the
Secondly, we must doubt whether the intention was that the section should extend to rules of this kind; whether the intention was that the section should extend to any other rules than rules to operate on the officers, the agents and the employees of the road.
1st. We think, then, that the court erred in not receiving the answer to the question.
The second, the third, the fourth and the seventh grounds, may be passed without further notice than this mention of them. They merely impute error to the jury, in finding against the evidence, or against certain charges of the court; and, it is needless to consider them, as a new trial is to be granted on other grounds.
We see nothing meritorious in the fifth ground. The qualification added by the Court to the charge requested, was obviously proper.
The sixth ground was this charge: “that the running off of the track, by the train, was prima facie evidence of negligence on the part of the officers of the road.”
We are not prepared to say that this charge was wrong.
The eighth ground was this charge: “that though the deceased may have been guilty of some negligence, this does not excuse the road, if they,” [the jury] “believe, the officers were greatly more at fault than deceased.”
We doubt whether this charge is precisely right. See Davis vs. Western and Atlantic Railroad, 18 Ga. 679. Western and Atlantic Railroad vs. Wynn, 19 Ga. 440. And for my own opinion as to the rule, see Western and Atlantic Railroad vs. Wynn, decided at Macon, June, 1858.
The ninth ground was the charge : “that if the road would not bear a speed of thirty miles an hour, the speed should have been lessened so as to make it safe” — it being insisted, that there was no evidence to authorize the charge. And we can find none. Therefore, we must hold the ground a good one.
The tenth ground was, that the damages were excessive.
The damages were assessed at $3,916 66. The suit was brought by the mother to recover the value of the services of her minor son. If he had lived, she would have been entitled to his services, so long as he remained a minor, and no longer. Obviously, then, his age at the time of his death, and the annual value of his services, are important elements in the question of what was the proper amount for the damages. What says the evidence on these two points !
There are two witnesses on the points, Montfort and Dunlap. Montfort says that the minor, when killed, was from sixteen to eighteen years old ; and that his services were worth from $25 to $30 per month, and that their value would have increased at from ten to twenty-five, or fifty per cent. It is quite obvious, that we cannot get damages to the amount of $3,916 66 out of this evidence.
Dunlap says that he moved to Oassville, on the 15th of January, 1839, and that about that time he became ac
This witness says that the minor’s services were worth §30 per month, or §750 per year, (he had been drinking;) he also says, that a first rate clerk was worth §1,000 per year, and that the minor was as good a clerk as he ever saw.
The incongruity in all this makes it worth very little as evidence. But say that it is trustworthy, and is to be construed most favorably for the verdict, what will be the result? Thirty dollars per month — even seven hundred and fifty dollars per year, will not, in four years, amount to §3,916 66. But §1,000 a year, for four years, will, and to something more. Say, then, that by the testimony of this witness the services of the minor were worth §4,000, does it follow that the damages ought to be for that amount, or even for an amount equal to the verdict ? It does, jeerhaps, unless there were some items to be set against the services. Were there any such items ? We think that there were several. One — the expense of subsisting the minor. It is to be presumed that the witness
Two — the chances of the minor’s dying before arriving at the age of twenty-one. There is a way of estimating such chances. The insurance officers do it every day. How much these chances ought to reduce the damages, I am not prepared to say. I am sure, however, that they ought to reduce it quite appreciably.
Three — the fact that the minor was himself greatly to blame in the affair. He was an employee of the road. It is to be presumed, therefore, that he well knew that the platform on which he was, when killed, was a place of extra danger. In addition to this, he was told by the conductor that the place was one of danger, that he was violating a rule of the road, and that he must come inside the car. This he disregarded, and was killed; whilst another young man, who was with him, heeded it, went inside the car, and escaped unhurt. Ought he, or those standing in his right, under such circumstances, to recover full damages — to recover as much as if he had been guilty of no negligence himself? We think not. We will not undertake to say how much such conduct as this ought to reduce the recovery, but we will say that it ought to reduce it much.
It was, however, insisted that the mother was not to suffer for this misconduct of her minor child. The case was likened to that in which a man’s slave is improperly taken on board a train, and is killed by it, through his own fault. But we do not see the analogy. It is not to be presumed that this minor was improperly on the train —was on it without his mother’s consent. He was, and had been for some time, living away from his mother, apparently pretty much his own man. From this, we should
And, then, what is more important and decisive, is that the mother is entitled to assert only the rights which the minor himself might have asserted, if he had been alive, and were the party sueing for the injury. She is entitled to sue, as his “legal representative,” and in no other way or right. And, as his legal representative, she is only entitled to sue if the circumstances are such that they would have entitled him to sue, had the injury stopped short of killing him. The nature of his conduct, then, enters as much into the case as if he himself were the party plaintiff. All this is is by the act of 1850. (Cobb, 476.)
The conclusion, then, to which we come, is, that the verdict was too large, and that therefore this tenth ground was well founded.
That is the last ground.
The result is that we think that the court ought to have granted the motion for a new trial.
New trial granted.