Cent. R.R. & Banking Co v. Dottenheim

• Decision Date: 17 April 1893
• Citation: 92 Ga. 425,17 S.E. 662
• Court: Georgia Supreme Court
• Parties: CENTRAL RAILROAD & BANKING CO. v. DOTTENHEIM.

17 S.E. 662

92 Ga. 425

CENTRAL RAILROAD & BANKING CO.

v.DOTTENHEIM.

Supreme Court of Georgia.

April 17, 1893.

Railroad Companies — Accidents to Trains — Personal Injuries—Evidence—Instructions.

1. Upon an inquiry as to what caused the breaking of a car axle, which occurred on the railroad of the defendant at a time when a train was wrecked, it was not error to refuse to allow a witness offered by the defendant to describe to the jury an axle which had been brought to him, reputed, but not proved, to have come from the defendant's railroad, and not identified, either as belonging to the defendant, or as the one involved in the inquiry, although the defendant also expected to prove by this witness that the axle he examined "was broken exactly as the other witness saw the axle made by the wreck, after the injury."

2. It appearing that the plaintiff had been injured in a wreck on defendant's road, and that about two years thereafter he had a fall which resulted in serious injury to his spine, and the plaintiff himself testifying that he "got over the first hurt, " a charge based upon the theory that the injury caused to the plaintiff by the defendant was permanent, if authorized at all, should have been accurate, both in substance and phraseology.

3. The charge on the subject of permanent injury, authorizing the jury to consider any diminution in the plaintiff's capacity to earn money, caused by the injury alleged in the declaration, as if such diminution would continue, from that cause alone, during the entire period of his expectancy, and up to the time of his death, and not instructing the jury to take into consideration such diminution as might be caused by declining years, or by receiving another serious injury, of which there was positive proof by the plaintiff himself, was erroneous.

4. Read in connection with the entire charge, the instruction complained of, regarding the measure of damages to be allowed the plaintiff on account of pain and suffering, was not ambiguous, misleading, or erroneous.

5. As the case is to be tried again, no opinion is expressed as to whether or not the verdict was authorized by the evidence; and as the questions relating to the refusal of a continuance, and alleged newly-discovered evidence, will not arise upon the next trial, no ruling thereupon is necessary.

(Syllabus by the Court.)

Error from superior court, Bibb county; A. L. Miller, Judge.

Action for personal injuries by E. A. Dottenheim against the Central Railroad & Banking Company. Plaintiff had judgment, on which, and an order denying a new trial, defendant brings error. Reversed.

The following is the official report:

Dottenheim sued the railroad company for damages for personal injuries. He obtained a verdict for $2,500, and defendant's motion for new trial was overruled, to which it excepted. The motion contained the grounds that the verdict was contrary to law, evidence, etc., and was excessive. Also, because the court erred in not continuing the case on account of the absence of one Charpiot, on the motion of defendant, defendant showing that the witness had been subpoenaed, was not absent by its consent, and that it expected to show by him that the track where the accident occurred in which plaintiff was injured was a good track, with good T rail on it, and the whole track was In good condition; that he was at the wreck the day...