Atl. & B. Ry. Co v. Bowen

• Decision Date: 16 May 1906
• Citation: 125 Ga. 460,54 S.E. 105
• Court: Georgia Supreme Court
• Parties: ATLANTIC & B. RY. CO. v. BOWEN.

54 S.E. 105

125 Ga. 460

ATLANTIC & B. RY. CO.

v.BOWEN.

Supreme Court of Georgia.

May 16, 1906.

1. Damages — Personal Injuries — Instructions.

In an action for damages against a railroad company, where the plaintiff sues for the value of lost time, physical pain, and suffering, physician's bill, permanent physical impairment, and the consequently diminished capacity to labor, alleged to be the result of personal injuries sustained in consequence of the negligence of the defendant company and its employés, it is error to give in charge to the jury the following provisions of the Civil Code of 1895 (§ 3907): "In some torts the entire injury is to the peace, happiness or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors."

2. Trial—Instructions.

"To charge the jury in a civil case that they are the judges of the law and the facts which have been submitted to them is erroneous." Higginbotham v. Campbell, 11 S. E. 1027. 85 Ga. 638.

3. Same.

An excerpt from a charge, which, when taken in connection with the instructions immediately preceding it, is merely a caution against possible prejudice on the part of the jurors against either party, is not erroneous.

(Syllabus by the Court.)

Error from City Court of Douglas; Levi O. Steen, Judge.

Action by G. H. Bowen against the Atlantic & Birmingham Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

J. L. Sweat and Quincy & McDonald, for plaintiff in error.

L. A. Wilson and Lomer & Reynolds, for defendant in error.

BECK, J. Bowen sued the defendant company for damages on account of personal injuries alleged to have been sustained by reason of the derailment of a train of the defendant, upon which he was a passenger. The jury returned a verdict in his favor, and the defendant made a motion for a new trial upon the general, and five special, grounds. The first two special grounds were abandoned, however, the third, fourth, and fifth being the only ones urged here. They are as follows: "Third. Because the court erred in charging the jury as follows: 'In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors.' And for the reason that the rules of law contained in said charge were inapplicable and improper to the case on trial." Fourth. Because the court erred in charging the jury as follows: 'Gentlemen of the jury, you are in this case, as in all such cases, the judges of the law and the facts, ' for the reason that said charge contained an incorrect rule in civil cases, " etc. "Fifth. Because the court erred in charging the jury: 'You will forget that the plaintiff is a colored man, or the defendant a railroad corporation.' " Upon the overruling of the motion, the defendant excepted.

1. The plaintiff contended that, as a result of the injuries sustained by him in the alleged wreck, he suffered severe pain for a number of months; that he was entirely disabled for duty for a period of three months; that he incurred expense on account of physician's bills and medicine; and that he will probably continue to suffer during the rest of his life. These are the only elements of damages contended for and insisted upon by the plaintiff. And in such a case it is manifestly error for the court to give in charge to the jury that portion of section 3907 of the Civil Code of 1895, complained of in the third ground of the amended motion, which is as follows: "In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed except the enlightened conscience of impartial jurors." In the case of Central Ry. Co. v. Almand, 116 Ga. 780, 43 S. E. 67, where ...