Western & A.R. Co. v. Young

• Decision Date: 09 November 1888
• Citation: 7 S.E. 912,81 Ga. 397
• Parties: WESTERN & A. R. CO. v. YOUNG.
• Court: Georgia Supreme Court

7 S.E. 912

81 Ga. 397

WESTERN & A. R. CO. v. YOUNG.

Supreme Court of Georgia

November 9, 1888

Syllabus by the Court.

Interest at the legal rate cannot be added by the jury, in their discretion, to discretionary damages awarded by them for a personal injury. Only special damages, computable upon direct or indirect evidence of actual values, can be thus increased.

Due care for its own safety in a child nine years of age is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation. Neither the average child of its own age, nor the prudent man, is a standard by which to measure its diligence with legal exactness. Such care as the capacity of the particular child enables it to use, naturally and reasonably is what the law requires. ^[1]

It is negligence, as matter of law, for railway companies not to use the precautions for safety at public crossings definitely prescribed by statute or valid municipal ordinance. The existence of an ordinance, however, is matter of fact to be referred to the jury; the court cannot notice it judicially. Such an ordinance, regulating speed of trains, and requiring flagmen or watchmen to be kept at crowded crossings, may be passed and enforced by a city under the general grant of police powers usually found municipal charters. No unreasonable ordinance can be valid. ^[2]

For a personal injury to a child nine years of age, including deprivation of a member, the law furnishes no measure of damages other than the enlightened conscience of impartial jurors, guided by all the facts and circumstances of the particular case. Among the results of the injury to be considered are pain and suffering, disfigurement and mutilation of the person, and impaired capacity to pursue the ordinary avocations of life at and after attainment of majority.

Error from city court of Atlanta; VAN EPPS, Judge.

Julius L. Brown, for plaintiff in error.

Smith Hoke & Burton, for defendant in error.

BLECKLEY C.J.

The plaintiff below, a boy nine years of age, obtained a verdict for $10,000 for personal injuries received on a public street-crossing in the city of Atlanta, by reason of being thrown down and run over by the cars of the railway company his chief injury being the loss of his right arm, which had to be amputated above the elbow. The company moved for a new trial upon 40 grounds, all of which were overruled.

1. The last ground of the motion complains of the charge of the court to the effect that the jury might, in their discretion, award, upon discretionary damages, further damages in the nature of interest computed at 7 per cent. from the date of the injury to the time of trial. This instruction was error. There is no authority of law for treating the jury as clothed with a double discretion,--a discretion to be exercised, first, in fixing the amount of the plaintiff's damages, and then in augmenting that amount by an assessment, in the nature of interest, for detention of the money or delay of payment. As long as the principal sum was not only unascertained, but unascertainable, save by the enlightened conscience of impartial jurors, the law neither appointed a day of payment, nor exacted any tender. The privilege of tendering by guess, given by statute in section 3056 of the Code, is not granted as a resource to shun or stop interest, but to avoid cost. As far back as 1799, we have statutory evidence adverse to the policy of increasing verdicts on account of interest upon unliquidated demands. Cobb, Dig. 495. It was thought consistent with this statute to increase the damages in trover by the addition of interest on the value of the property from the time of conversion. See Collier v Lyons, 18 Ga. 648, and other cases. So, in Railroad Co. v. Garr, 57 Ga. 280, the power of the jury to add interest in computing damages recoverable by a widow for the homicide of her husband is tacitly recognized. And in Railroad Co. v. Sears, 66 Ga. 499, there is apparently a like recognition of the power, while the direct adjudication was that it was not obligatory as a duty. To the same effect, perhaps, is Railroad Co. v McCauley, 68 Ga. 818, where the action was for killing a bull. But in all these cases the damages recoverable were special, and had to be proved by evidence applying directly or indirectly to values; while in the present case there is no such evidence, and the entire recovery is for damages of a nature incapable of any standard of measurement external to the minds and consciences of the jury. In this respect, though they are not punitive, all claim to punitive damages having been renounced at the trial, they are as indefinite and indeterminate in their elements as are damages of that class; consequently the case of Rattaree v. Chapman, 4 S.E. 684, (decided last term,) which holds that the jury should not be instructed that they are authorized to add interest in assessing damages, where punitive damages can be allowed, rules this case. In principle, the two cases are one and the same. To add interest to discretionary damages is to multiply uncertainty by certainty; the indefinite by the definite; a mixture of incongruous elements which subjects one of the parties to the burden, and gives the other the benefit of both kinds. If the time of realizing discretionary damages is to be considered, (and doubtless the jury may consider it,) it should be left as one of the terms of the general problem of damages, unfixed like all the rest of the terms. The rate of interest, as established by law, has no relevancy to the matter. Sums ascertainable only by the enlightened conscience of impartial jurors do not bear interest before verdict, either as interest or as damages, with or without discretionary allowance by the jury.

2. The cars which hurt the boy were being switched, in the heart of the city, from the premises of one railroad company to those of another. They were running backwards. The boy was passing along a street which divided the premises of the one company from those of the other, and which crossed eight parallel tracks. He was upon the sidewalk. His diligence in looking out for danger was and is a main point in the merits of the litigation. The court charged (twenty-fourth ground of the motion) that "ordinary diligence is that degree of care and attention which ordinarily reasonable and prudent persons would use under the same or similar circumstances. If the plaintiff was a child of tender years, it would be that degree of care and attention which a child of average powers and capacity, of the same age, would use under the same or similar circumstances." The objections to this charge as indicated in the motion, are that the court should have used "men" instead of "persons," and that it was otherwise illegal. We do not go back to the reported cases to see whether the care of "ordinarily reasonable and prudent persons" is equivalent to the care of "every prudent person," but we suggest that the standard of ordinary care, under our law, is the care of every prudent man, and not of the average or ordinary prudent man or person. In Beach, Contrib. Neg. § 9, p. 23, mention is made of the ideal average prudent man, whose conduct theoretically is a constant; but we prefer to look for a standard to the real man, the prudent man, and to exclude the average altogether from the test. When the class "prudent" has been reached,...