Atlanta Consol. St. Ry. Co. v. Beauchamp

• Decision Date: 30 October 1893
• Citation: 19 S.E. 24,93 Ga. 6
• Parties: ATLANTIC CONSOLIDATED ST. RY. CO. v. BEAUCHAMP.
• Court: Georgia Supreme Court

19 S.E. 24

93 Ga. 6

ATLANTIC CONSOLIDATED ST. RY. CO. v. BEAUCHAMP.

Supreme Court of Georgia

October 30, 1893

Syllabus by the Court.

1. The declaration alleging that the plaintiff's injuries had destroyed his ability to work and pursue his accustomed avocation; that his business was that of a granite and stone contractor, requiring him to be on his feet, and to exert all his physical powers in superintending, directing, helping etc.; and that his average earnings were $150 per month, all of which were lost for all the future,--there was no error in allowing him to testify as a witness what work he did individually before the injury, and that its value was $5 per day, the evidence showing that the work he did individually was done in pursuing his calling as a granite and stone contractor.

2. The plaintiff having testified that there was nothing to hinder the motorman from seeing him, and that there was nothing between the motorman and the witness and his cart, there was no error in allowing him to state he thought or supposed the motorman would stop the car; this testimony illustrating and explaining the conduct of the plaintiff in managing his horse upon the occasion under investigation.

3. A witness, being asked whether or not if a certain thing mentioned in the question, had been done she would have seen it, answered, "Well, I suppose I would." The question was not leading, nor the answer illegal.

4. Before the Carlilsle mortality and annuity tables can be properly admitted in evidence, to show the expectancy of the plaintiff and aid the jury in arriving at the amount of damages he should recover for a permanent injury, the foundation should be laid by proving the plaintiff's age or introducing evidence from which his age could be inferred or approximately arrived at by the jury.

5. When it is open to question at what a horse became frightened, the witness, after stating the facts, may testify he was pretty certain the animal took fright at a particular object.

6. Upon an assignment of error alleging that "the court erred in charging the jury as follows: 'If you believe from the evidence that the motorman in charge of the car was running at a high rate of speed,' then certain legal consequences followed as therein declared,"--without setting forth what those consequences were, as expressed in the charge, it is impossible for this court to determine whether, if erroneous at all, the charge excepted to resulted in any injury to the party complaining of it.

7. The plaintiff's cause of action being based upon the theory that, before the injuries therein complained of, he was in all respects a perfectly sound and healthy man, there being nothing either in the declaration or the evidence introduced by him to suggest the contrary, and the newly-discovered evidence disclosing that he had previously been severely afflicted with rheumatism, and had also received a gunshot wound, which permanently disabled his right arm, and the newly-discovered evidence further tending to show that the injuries inflicted by the defendant were not so serious as the plaintiff had testified, the ends of justice require a new trial. It is probable, if not certain, that, in allowing the amount of damages found by the verdict, the jury acted under the belief that the plaintiff, when he received the injuries for which this action was brought, was a sound and healthy man, and, consequently, awarded a larger amount than they would have done had the facts disclosed by the newly-discovered evidence been before them.

8. Under all the circumstances, the plaintiff could not, consistently with good faith, withhold and conceal these facts from the jury. As to a material part of the newly-discovered evidence, there was no want of diligence in failing to acquire knowledge of it before the trial.

Error from city court of Atlanta; Howard Van Epps, Judge.

Action for personal injuries by J. X. Beauchamp against the Atlanta Consolidated Street-Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

N. J. & T. A. Hammond, for plaintiff in error.

Arnold & Arnold, for defendant in error.

LUMPKIN J.

1. The plaintiff brought an action against the railway company for damages resulting from a collision between an electric car of the defendant and a vehicle he was driving. After setting forth the injuries received by the plaintiff, and the manner of their infliction, the declaration alleged as follows "All the foregoing injuries he charges to be permanent, and will forever destroy his ability to work and pursue his accustomed avocation. His business is that of granite and stone contractor and builder, and said occupation requires plaintiff to be on his feet, and requires him to exert all his physical powers in superintending, directing, helping, etc. His average earnings were $150 per month, all of which are lost for all the future." Over objection of the defendant, the plaintiff, while on the stand as a witness, was permitted to testify that he was a contractor, doing building work generally, working from 15 to 20 hands, of about half of whom he had charge, and his partner had charge of about half; that he (witness) did actual work, very often turning over stone, taking hold of anything he could; that he had to superintend the work nearly all the while; that he laid off the work...