Central of Georgia Ry. Co. v. Minor
| Decision Date | 11 November 1907 |
| Docket Number | 516. |
| Citation | 59 S.E. 81,2 Ga.App. 804 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. MINOR. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Questions of negligence are peculiarly within the province of the jury and this court will not disturb a finding of its existence when such an inference is warranted by any phase of the evidence.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3928-3934.]
In an action for a homicide, in determining whether the verdict is excessive or not, the question will not be decided by reference to the deceased's expectancy according to the mortality and annuity tables alone. A verdict will not be set aside, as excessive, when it is not so large as to justify the belief that it is the result of bias or gross mistake.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Death, § 125.]
The judge may properly instruct the jury, in explanation of the use of the mortality and annuity tables, that "if, under the evidence, the expectancy would be greater or less than that of the average man, or the earning capacity would increase or decrease, the cash value of the life should be increased or decreased accordingly," when there is evidence that the person, the value of whose life is in question, was a young man of good health and habits and was filling satisfactorily a responsible position.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Death, §§ 144, 145.]
Error from City Court of Macon; Robt. Hodges, Judge.
H. N. Minor against the Central of Georgia Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.
The judge may properly instruct the jury, in the explanation of the use of mortality and annuity tables, that if the expectancy would be greater or less than the average man, or the incapacity would increase or decrease, the cash value of the life should be increased or decreased accordingly, where there is evidence that the person was a young man of good health and habits and filled a responsible position.
Minor, the husband of the plaintiff, was employed by the defendant company to work in its yards at Macon in the capacity of "hostler helper," a kind of understudy, as it were, to the man who sees that locomotives are properly prepared and furnished for use in actual service. His regular occupation was that of member of the city fire department; but he was doing this service with the view of learning the trade, to the end of being regularly employed in the motive department of the railway company. He had been working in this service only three days when he met his death. A locomotive had been brought to a chute to be coaled. He mounted the tender, to help in loading the coal. The method by which this work is done is that the helper pulls down an apron-a kind of conveyor through which the coal runs from the chute to the tender-and then turns on the coal, which through the force of gravity runs from the chute, through the apron, into the tender. A cable attached to the upper portion of the apron, as it stands when not in use, is pulled, in order to lower the apron and admit the coal. Minor, after mounting the tender, pulled upon this cable, to lower the apron; and as he did so, and as the apron accordingly came down and into touch with the metal part of the tender, he was instantly struck and killed by a current of electricity which escaped from a wire against which the cable came into contact. The wire was part of an arc light circuit which supplied a lamp burning in front of the chute. The wires were attached to the chute, and so located that the cable swung down between them. On investigation of the wires, it appeared that the insulation had been worn away at about the place where the cable would come into contact with it, as it swung from the lowering of the apron of the coal chute.
From the testimony of the expert electricians who testified in the case the inference could be fairly deducible that the insulation had been worn away by the cable rubbing against the wire from time to time, though this was disputed by other testimony. The injury happened on a wet night, which tended to make injuries from the electricity more probable than when things were dry. It was shown that the wire had been installed by a reputable electric contractor; but there was no showing that the defendant had made any inspection. There was proof that the deceased, at the time of his death, "was 26 years old, perfectly healthy, and had no bad habits," and that "he was a bright young man." He had been a member of the city fire department for five years, and in that employment received $60 per month. The city also furnished him light, lodging, and heat free. A witness estimated this to be worth $12 to $15 per month, though, since the deceased was a married man and had to maintain a separate home, this probably resulted in no saving to him. The Carlisle Mortality and Annuity Tables were in evidence. The jury returned a verdict of $10,715 for the plaintiff.
The motion for a new trial, which was overruled, complains that the verdict is contrary to the evidence; also that it is excessive, especially so in light of the fact that it is in excess of the value of the life of the deceased, "calculated even upon the highest earnings shown during his life," wherefore it is apparent that no deduction whatever was made for decreased earning capacity due to illness or old age; also because the court charged the jury as follows: "If, under the evidence, the expectancy would be greater or less than that of the average man, or the earning capacity would increase or decrease, the cash value of the life should be increased or decreased accordingly." The specific objection to this excerpt from the charge is "that it allows the jury to consider the possibility of increased earning capacity of the plaintiff's husband, while the law does not authorize such recovery, for the reason that the same would be speculative, too uncertain, and too indefinite; also that there was no evidence before the jury that would authorize them to find that the plaintiff's husband's earning capacity would be increased, nor was there any evidence that could authorize the jury to find that his expectancy would probably be greater than that of the average man."
Wimberly & Jordan, for plaintiff in error.
Jos. H. Hall and Warren Roberts, for defendant in error.
1. As to the contention that the verdict is contrary to the evidence, that no negligence on the part of the master is shown, that the death of the deceased came about by reason of an accident, unforeseeable by ordinary care, it is necessary to say only that the evidence was such that a verdict either way could have been legally justified. Whether the wires were unsafely located in the beginning, whether the railroad company by ordinary care could have discovered this fact, whether an inspection reasonable under all the circumstances would have disclosed the probability of danger, were questions involved; and as to these things there was evidence pro et con. Possibly the members of this court, if they had been upon the jury which tried the case, would not have come to the conclusion reached by the jury; yet we cannot say that the inferences were not issuable.
Under the law of the land, the jury, the "ten men" and two, must, as to these questions, arbitrate; not we.
2. "The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias." Civ. Code 1895, § 3803. This axiom is not so peculiarly applicable to cases of this character, where the law fixes the basis of the jury's calculations, as in those cases where the limit of enlightened conscience is the only measure; still the rule in a restricted sense exists in these cases also. It is contended by the plaintiff in error that the verdict is manifestly excessive; for, if the jury had allowed a recovery at the rate of the deceased's salary as a fireman, $60 per month, plus the $15 per month estimated by one witness as the value of the bed, heat, and light furnished him in the fire engine house (plaintiff in error says that it is not fair to consider this $15, since he, being a married man maintaining a home, got no financial benefit therefrom), for his full life expectancy, according to the Carlisle Tables which...
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