Central of Georgia Ry. Co. v. Johnston

• Decision Date: 13 December 1898
• Citation: 32 S.E. 78,106 Ga. 130
• Parties: CENTRAL OF GEORGIA RY. CO. v. JOHNSTON.
• Court: Georgia Supreme Court

32 S.E. 78

106 Ga. 130

CENTRAL OF GEORGIA RY. CO. v. JOHNSTON.

Supreme Court of Georgia

December 13, 1898

Syllabus by the Court.

1. In the trial of a suit against a railroad company for personal injuries, when counsel for the defendant has stated in his argument to the jury that he did not take the position that the plaintiff was not hurt at all, and when the evidence in the case demands a finding, on this particular issue, that he was hurt, it was not error in the court to charge the jury that it was admitted by the defendant that the plaintiff was injured as the result of the accident.

2. It is not, in the trial of an action by a passenger against a railroad company for personal injuries sustained while traveling on its cars, an error of which the defendant can complain, for the court to define the degree of care and diligence which such a company should exercise as "an extra high degree of care," though in defining "extraordinary diligence" it is better practice for the trial judge to confine himself to the definition as given in the Code.

3. Where one of the theories of the plaintiff, upon which he relied for a recovery, was that the railroad company was guilty of negligence in running its cars over the switch where the injury occurred at an unusual and dangerous rate of speed, and the court charged that if the company ran upon the switch at an excessive or improper rate of speed, and thereby contributed to and caused the accident, then the defendant would be liable, the words "excessive or improper" might be treated as the equivalent of the word "negligent"; but it would be decidedly better for the court to use the latter word, when charging in such a connection.

4. When, in such a trial, there was evidence clearly tending to show that the plaintiff's earning capacity had not been totally destroyed, it was improper for the court, especially at the close of its charge, to use the language: "The measure of damages in this case; that is, should you find that the plaintiff is entitled to recover, under the rules of law that I have given you in charge, and the opinion you entertain of the testimony, then you will find what his earnings will or would be for the length of time he is expected to live; then you would reduce it to its present value." An error of this kind is, though the court had previously laid down the correct rule on this subject, cause for a new trial, when, taking into view the large amount of the verdict rendered, it cannot be safely and fairly said that the jury were not misled by the erroneous instruction given at the conclusion of the charge.

Error from superior court, Taylor county; W. B. Butt, Judge.

Action by F. C. Johnston against the Central of Georgia Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

Lawton & Cunningham, John D. Little, W. S. Wallace, C.J. Thornton and O. M. Colbert, for plaintiff in error.

Hoke Smith, H. C. Peeples, W. E. Steed, and Albert A. Carson, for defendant in error.

LEWIS J.

1. It appears from the record in this case that the general counsel for the plaintiff in error, in his argument on the trial before the jury, stated that he did not take the position that plaintiff was not hurt at all. Error is assigned on a statement made by the judge in his charge to the jury that it was admitted by the defendant that the plaintiff was injured as the result of the accident. Conceding that this charge was based entirely upon the above statement of counsel, we do not think an unfair construction was given this language. Although such an issue was presented by the pleadings in the case, the defendant alleging in its plea that the plaintiff had received no injury whatever as the result of the accident, yet the court and jury might very reasonably have inferred from the above statement of counsel that it was no longer contended that plaintiff received no injury whatever and that the contention in the pleadings on this point had been abandoned. But, apart from this, after a careful review of the entire testimony in the record, the proof was so positive, direct, and overwhelming that the plaintiff was hurt in consequence of the derailment of the train, that a finding of this issue was demanded by the evidence. If this be true, even if the court erred in concluding that a formal admission had been made as he charged, it was a harmless error, and is not, therefore, ground for granting a new trial. On this particular point, with reference to the injuries received by the plaintiff, considered in the light of all the testimony on the subject, the real contest between the litigants seems to have been in reference to the extent of the plaintiff's injury,--the one side contending that he was seriously and permanently injured; and the other, that his injuries were only of a slight and temporary nature. In the case of McCurdy v. Binion, 80 Ga. 691, 6 S.E 275, it was held not to be error for the judge to state certain facts as data which might be used by the jury in reaching their verdict; it having been proved in the case that the facts stated were admitted by the defendant, and were not in contest. To the same effect, see Chambers v. Walker, 80 Ga. 643 (Syl. point 3), 6 S.E. 165; Crusselle v. Pugh,

67 Ga. 430 (Syl. point 2). The inference is unavoidable in this case that the charge of the court complained of, even if erroneous, did not affect the finding of the jury. Judging from the amount of their verdict, they must have reached the conclusion that the plaintiff was hurt to the full extent he claimed, and that his injuries were of a serious and permanent nature. They were certainly not constrained to reach this conclusion from the statement of the court that it was conceded that the plaintiff was hurt as the result of the accident; for the judge, in other portions of his charge, fully and fairly covered the contentions and issues between the parties with reference to the extent of plaintiff's injuries. This disposes of the eighth, ninth, tenth, and eleventh grounds of the motion for a new trial.

2. Complaint is made in the twelfth ground of the motion of the charge of the court, which, in effect, defined the diligence required of the railroad company to be "an extra high degree of care." The plaintiff being a passenger upon the defendant company's car when he was injured, the duty it owed to him, under section 2266 of the Civil Code, was extraordinary diligence. Section 2899 defines that diligence to be "that extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property." In charging upon this subject, the proper and safer method for the judge to adopt would be to confine himself to the statute. Its definition cannot well be simplified or made clearer by an attempt to use synonymous terms, or to convey its meaning in other words. But the definition given by the court, even if erroneous, is not such an error as the defendant can complain of. If there was any error in it, it was in favor of the company, and not the plaintiff, for the words used by the judge do not indicate in such forcible language the degree of care required as do the words in the statute. That extreme care and caution which...