Atlanta, K. & N. Ry. Co. v. Gardner
| Decision Date | 01 February 1905 |
| Parties | ATLANTA, K. & N. RY. CO. v. GARDNER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A separate count in a petition claiming damages for negligence which alleged in general terms that the defendant was guilty of negligence, should have been stricken on special demurrer setting up that it failed to set forth the particulars in which the defendant was negligent, unless the defect therein was cured by amendment.
2. On the trial of an action brought by a minor for permanent personal injuries, when no evidence was submitted in reference to the earning capacity of the plaintiff prior to the injuries, there was no measure of damages for such injuries except the enlightened consciences of impartial jurors, guided by the facts and circumstances of the particular case. A charge to this effect was not inapplicable in the present case.
3. There was no expression of opinion upon the facts of the case in charging the jury that "the duty resting by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the danger is impending, or the circumstances are such that an ordinarily prudent man would have reason to apprehend its existence." Nor was this charge erroneous because the court failed, in the same connection, to charge that if the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence there could be no recovery.
4. In a suit for damages for personal injuries alleged to have been sustained in consequence of the negligence of the defendant the law of contributory negligence was not involved, if the person injured did not fail to exercise ordinary care for his safety before the negligence of the defendant was either apparent or should have been apprehended by him, and could not after that time have avoided the consequences of such negligence by the exercise of ordinary care.
5. On the trial of such an action against a railway company, a charge that "failure to exercise ordinary care on the part of the person injured before the negligence complained of is apparent or should be reasonably apprehended would not preclude a recovery, but would authorize a jury to diminish the damages in proportion to the fault of the person injured," did not properly present to the jury the imperative requirement of the Civil Code of 1895 (section 2322) in reference to the diminution of the plaintiff's damages in such a case.
6. As Civ. Code 1895, § § 2322, 3830, involve separate and distinct defenses to cases of this character, a rule applicable to one of them alone should not be given in immediate connection with the other, without appropriate explanation. We will not say, however, that the charge complained of on this ground was necessarily so confusing to the jury as to be cause for a new trial.
7. Under the pleadings and the evidence in this case, it was erroneous not to charge the principle that if the plaintiff by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence, she could not recover, although the court was not requested to so charge by the defendant.
8. The court should not only state the contention of a party to the jury, but should also state the law applicable to such contention.
9. Charging the principle laid down in Civ. Code 1895, § 2322, that "no person shall recover damages of a railroad company for injury to him or his property" where the same "is caused by his own negligence," is not equivalent to charging the principle, contained in section 3830, that, "if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover."
10. "On the trial of an action for personal injuries alleged to be permanent, mortality tables are not proper evidence, and instructions as to their use are inappropriate, unless there be some evidence as to the value of the plaintiff's services or capacity to earn money."
11. On the trial of such an action, complaints made by the plaintiff to her attending physician of pains in designated portions of her body were not admissible in evidence in her favor, unless made under such circumstances as to be equivalent to spontaneous and involuntary exclamations or outcries, groans, convulsive movements, and other physical manifestations of present pain and suffering.
12. Though a question propounded to a witness was irrelevant and objected to upon this ground, yet if the answer thereto was not unfavorable to the objecting party, or stated only an admissible fact, the overruling of the objection to the question was not cause for a new trial.
Error from Superior Court, Pickens County; Geo. F. Gober, Judge.
Action by Ruth Gardner, by her next friend, against the Atlanta, Knoxville & Northern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.
Smith, Hammond & Smith, W. T. Day, and Clay & Blair, for plaintiff in error.
Arnold & Arnold, F. C. Tate, and Geo. L. Bell, for defendant in error.
FISH, P.J. (after stating the facts).
1. The only demurrer insisted upon in the brief and written argument of counsel for the plaintiff in error is the special demurrer to the sixth paragraph of the petition. This demurrer was upon the ground that this paragraph set forth only the conclusion of the pleader, "without alleging wherein defendant failed to exercise all ordinary and reasonable care and diligence." This demurrer should have been sustained, and this paragraph of the petition stricken. As will be seen from the above statement of facts, this paragraph began as follows: "And for further cause of action, and by way of an additional count, plaintiff says," etc.; so it is clear that this was an entirely separate and distinct count. "A count in a petition against a railway company, claiming damages for negligence, which alleges in general terms that the defendant was guilty of negligence, should be stricken on special demurrer setting up that the petition fails to set forth the particulars in which the defendant was negligent, unless the defect in the petition is cured by amendment." Central Ry. Co. v. Weathers, 120 Ga. 475, 47 S.E. 956, and cit. Whether in the present case the refusal of the trial judge to sustain the special demurrer to this count of the petition would have been sufficient ground for reversing the judgment below need not be determined, as a new trial should have been granted upon certain other grounds in the motion therefor.
2. One ground of the motion for a new trial complains of the following charge of the court: "Where a minor has suffered a permanent injury, and such minor is too young to have selected an avocation or to begin to illustrate her earning capacity, in such cases there is no measure as to the amount of damages, where such minor is entitled to recover therefor, except the enlightened consciences of impartial jurors, guided by all the facts and circumstances of the particular case." The errors assigned are: This charge was not inapplicable to the facts of the case, as shown by the evidence before the jury, and, under those facts, there was no measure of damages except the enlightened consciences of impartial jurors, guided by all the facts and circumstances of the case. The petition did not allege that the plaintiff was earning any income at the time that she was injured, nor that she had ever earned any, nor did the plaintiff undertake to sustain by evidence the allegations of the petition as to her earning capacity at the time she was injured. The plaintiff introduced no evidence whatever upon this subject, nor upon the subject of expenses incident to her injuries. As her case went before the jury, she was seeking to recover alone for pain and suffering and permanent injuries, without undertaking to furnish the jury by evidence with any standard from which to calculate the amount of diminution in her earning capacity. She did not rely upon loss of established earning capacity, for she did not offer to prove that she ever had any. The proof showed that she was 17 years old at the time she received the injuries complained of. So the charge excepted to was applicable to the facts of the case, and the legal principle charged was in accordance with the decision of this court in Western & Atlantic Railroad Company v. Young, 81 Ga. 397, 7 S.E. 912, 12 Am.St.Rep. 320 (4). There it was held: In that case Chief Justice Bleckley said: "A brief but excellent model of a charge upon the measure of damages, where the subject of the injury was a child, will be found in Davis v. The Central Railroad, 60 Ga. 329." The charge here referred to and commended was as follows: ...
To continue reading
Request your trial