Central of Georgia Ry. Co. v. Perkerson

• Decision Date: 26 February 1901
• Citation: 38 S.E. 365,112 Ga. 923
• Parties: CENTRAL OF GEORGIA RY. CO. v. PERKERSON.
• Court: Georgia Supreme Court

38 S.E. 365

112 Ga. 923

CENTRAL OF GEORGIA RY. CO. v. PERKERSON.

Supreme Court of Georgia

February 26, 1901

Syllabus by the Court.

1. There was no error in refusing to grant a nonsuit.

2. In an action for the homicide of a railroad employé, proof of his usual earnings as such employé, within a reasonable period of time prior to his death, is admissible. There is no arbitrary rule which confines the proof upon this point to what he was actually earning at the very time of his death.

3. The rule that the widow of a railroad employé cannot recover of the company employing him for his homicide, if his negligence contributed thereto, was stated with sufficient fullness in the general charge; and, if counsel for the defendant desired more particular instructions on this point, the same should have been specially requested.

4. The trial judge had no power to order that, as a condition to the refusal of a new trial, a portion of the verdict shall be written off as excessive, except where, from the application of the law to the evidence, the excess can be accurately ascertained.

5. There was no material error in any of the charges complained of, when read in connection with the whole charge; nor was there any error in the rulings of the court upon the admission of evidence to which exception is taken.

Error from city court of Macon; W. D. Nottingham, Judge.

Action by Pearl Perkerson against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Hall & Wimberly and R. E. Jordan, for plaintiff in error.

Guerry & Hall, for defendant in error.

FISH J.

Pearl Perkerson brought an action for damages against the Central of Georgia Railway Company for the homicide of her husband Marion A. Perkerson. Upon the trial the plaintiff proved that her husband was killed by the running of the defendant's train; that at the time of his death he was 32 years old, and was in the employ of the defendant as a yard conductor or foreman receiving $65 per month for his services, which position he had held for about 3 months; that prior to this he had been for 7 or 8 years a passenger conductor, in which position he earned from $100 to $110 per month, and then a freight conductor, receiving from $75 to $85 per month. She testified that he gave up his position as passenger conductor "because of his health, his meals being so irregular," but she thought he was in perfect health at the time of his death. The mortality and annuity tables contained in 70 Ga. 843, were put in evidence. The jury returned a verdict in favor of the plaintiff for $10,833.33. The defendant moved for a new trial. This motion was overruled, except as to the ground complaining that the verdict was excessive, upon which ground the court ordered that a new trial be granted unless the plaintiff should write off from the verdict a designated amount. The plaintiff complied with this requirement, and a new trial was thereupon refused. The defendant then excepted to the judgment of the court overruling the motion.

1. The evidence submitted for the plaintiff authorized a recovery in her behalf, and the refusal of a nonsuit was proper.

2. Error is assigned upon the ruling of the court in permitting over the objection of the defendant, the plaintiff to prove by one of the defendant's witnesses the usual earnings of a freight conductor in the employment of the defendant. The objection urged to the admissibility of this testimony is "that plaintiff's husband was what was called a 'yard foreman,' and not a freight conductor, and that plaintiff could only prove what he was earning in the capacity in which he was working, and that it was not competent to prove what might be earned by persons in other employments, but that the same was contingent and speculative, and that said testimony was irrelevant and inadmissible." It appears from the evidence that the plaintiff's husband at the time of his death was employed by the defendant as a yard conductor or foreman, and received for his services as such $65 per month. He had been for seven or eight years a passenger conductor, in which position he received $100 per month, part of the time receiving $110 per month. He gave up this position, "because of his health, his meals being so irregular," and then was a freight conductor for not quite a year, earning from $75 to $85 per month, and then took the position in which he was employed at the time of his death, which he had held for about three months. At the time that he was killed by the running of the defendant's train, he was, in the opinion of his widow,--the only witness who testified as to his physical condition,--in perfect health. Epperson, a witness for the defendant, testified that he was superintendent of the Second division of the defendant's railway, extending from Macon to Atlanta and from Barnesville to Thomaston, and as such had charge of the yard in Macon, where Perkerson, the plaintiff's husband, was employed, and where he was killed. He testified further: "I knew Mr. Perkerson. I had known him, I reckon, thirteen or fourteen years; maybe not quite so long. He was quite young when I first knew him. The first railroading he done was for me. He came to me on the L. & N. He came to me here in Macon, and I recommended him to the yardmaster. I regarded him as a reliable man, and a man that understood his business; bright, intelligent man. When I first knew him, my recollection is, he was flagging on the work train. It pays about $50 per month. A good many things on the train are lower than that. He has been rising in his calling. I don't know, but I suppose his prospects for further promotion were fair. I suppose he could have gotten very easily back to where he had been as passenger train conductor. I don't think he was intelligent enough to fill positions higher than that. In fact, I always thought he would make a first-class conductor, or yard master in a small yard. A yard master gets different prices,--front $90 to $130; and some as high as $150 or $300. I don't think he could have filled the yard here in the course of time. I never had made up my mind at all as to making him yard master of Macon, here. He was on the line of promotion, as all men are who do their duty." Counsel for plaintiff in error, referring to the evidence as to the earnings of a freight conductor, in their brief, say: "It will be seen from the brief of evidence that a great deal of testimony similar to this in character was admitted. We deemed it unnecessary to assign error in each separate instance, as the principle is the same in all these instances. If it was error to admit testimony as to the earnings of freight conductors, it would, of course, be error to admit the similar testimony as to what passenger conductors can earn, and as to what yard masters can earn; and hence we thought one assignment was sufficient to present the question squarely to the consideration of the court."

Ought the plaintiff in this case, in endeavoring to furnish the jury with data from which to estimate the financial value of the life of the decedent had he lived, have been, so far as his earning capacity was concerned, confined to proof of what he was actually earning at the time of his death? It is pretty well established that in proving the value of the life of a deceased employé it is not competent to prove that he was in the line of promotion in his calling, and the increased rate of wages which he would have received if promoted. 8 Am. & Eng. Enc. Law (2d Ed.) 943, and cases cited. See, also, Railroad Co. v. Allison, 86 Ga 145, 12 S.E. 352. The reason for the rule is that the chances for promotion are too remote and dependent upon too many contingencies to be considered. 8 Am. & Eng. Enc. Law (2d Ed.) 943. It is, however, competent to prove what were the accustomed earnings of the deceased. Abb. Tr. Ev. (2d Ed.) 758; Railroad Co. v. Clarke, 152 U.S. 230, 14 S.Ct. 579, 38 L.Ed. 422; McIntyre v. Railroad Co., 37 N.Y. 287, 35. How. Prac. 36. The apparent reason for this rule is that what a man usually earned, within a reasonable period of time prior to his death, is about as reliable data upon which to estimate what his probable future earnings would have been, had he lived, as can be found. It is not permissible to prove what the deceased could have earned in a calling in which he had never engaged, but for which in the opinion of witnesses, he was well qualified. Nor, as we have seen, in the case of an employé, to prove that there were chances of promotion in the service in which he was engaged, and what his earnings would have been if he had lived and been promoted to a more remunerative position than he had ever held. The proof is not allowed to enter the domain of pure conjecture or speculation. But it does not follow from this that proof of what a railroad employé earned up to a short while before his death, in his chosen calling, is to be excluded because at the very time of his death he was not filling the particular position or positions in which these earnings were made. Demonstrated skill and capacity are one thing; conjectural skill and capacity are another thing. Proof of wages actually earned and received by an employé in a nonpolitical position, for which he had demonstrated his fitness, which go to make up his average earnings, within a reasonable period of time prior to his death, is different from proof of his probable chances, had he survived, to be promoted to a better position than he had ever occupied, and for which he had not demonstrated his fitness, in which he could have earned higher wages than he had ever done in the past. In the one case the proof deals with established facts and demonstrated capacity; in the other it has to do with imaginary...