City of Americus v. Gammage
| Decision Date | 04 November 1914 |
| Docket Number | 5589. |
| Citation | 84 S.E. 144,15 Ga.App. 805 |
| Parties | MAYOR, ETC., OF CITY OF AMERICUS v. GAMMAGE. |
| Court | Georgia Court of Appeals |
Rehearing Denied Feb. 11, 1915.
Syllabus by the Court.
The court in charging the jury did not err in the statement of the plaintiff's contentions.
In view of the improper argument of counsel, in which the statement was made that the ultimate liability for any damages that might be awarded by the jury would fall upon others than the nominal parties in the case, the instructions to the jury to which exception is taken in the fifth ground of the motion for a new trial were warranted and appropriate. If the remarks made by counsel had been such as tended to inflame the passion or to prejudice the minds of the jury, the court might have used a more immediate and drastic remedy; but since the only possible effect of the remarks of counsel would have been to withdraw the minds of the jury from the real issues in the case, the court properly refused to order a mistrial.
The amount of compensation for pain and suffering is determinable only by the enlightened consciences of impartial jurors, and the court correctly instructed the jury that if they found there was an injury, and that there was pain and suffering it was for the jury to ascertain from the evidence the exact injury and the nature of the pain and suffering, whether extreme or slight, and, after they had determined the nature extent, and duration of the pain and suffering, to fix such an amount as compensation as their enlightened consciences as fair and impartial jurors might dictate. This instruction is not subject to exception as suggesting to the jury to find for permanent injuries.
A verdict for damages based on personal injuries and pain and suffering cannot be said to be legally excessive, unless it is manifestly the result of bias or prejudice or improper influence.
Error from City Court of Americus; W. M. Harper, Judge.
Action by L. O. Gammage against the Mayor and Council of the City of Americus. Judgment for plaintiff, and defendants bring error. Affirmed.
J. B Hudson and Hollis Fort, both of Americus, for plaintiffs in error.
J. A. Hixon and L. J. Blalock, both of Americus, and R. L. Berner, of Macon, for defendant in error.
L. O. Gammage brought suit against the mayor and council of the city of Americus, in the city court of Americus, alleging damages for personal injuries occasioned by the plaintiff's having fallen into an open ditch in one of the streets of the city on the night of January 15, 1912. The plaintiff's petition alleged that he was an engineer in the switchyards, working at night, and that while en route from his home to his work, and while passing along Dodson street, he fell into a deep ditch which had been left open and unguarded by the employés of the city: that the ditch into which he fell was sunk in the street sometime during the day, and between the time he passed along the street returning from his work in the morning and the time of his injury at 7 o'clock p. m.; that his injury was caused by the negligence of the city and its employés in failing to place lights or guards over and around the excavation, and was in no wise caused by want of due diligence on his part; that the night was dark, the street unlighted, and he was unable to see the excavation before falling; that he was 37 years old, and had a reasonable expectancy of 30 years to live; that he had an average income of $170 per month; that he had undergone great pain and suffering by reason of the injuries received from the fall, and that such pain and suffering would likely be permanent. He further alleged that he had given the city due notice of his claim in writing as required by law. Damages were laid in the petition in the sum of $3,500, including loss of time for 3 months and 20 days and doctor's bill of $150, incurred for treatment of the injuries. The defendants filed a general denial of the plaintiff's petition, and pleaded that they had used all ordinary care and diligence in the construction of the work complained of, and had not failed to perform any duty owing by them to the plaintiff, and that, if ordinary care and diligence had been exercised on the part of the plaintiff, no damage would have accrued.
The plaintiff testified that, as was his custom, he started from his house on Lee street in the city of Americus about 7 o'clock p. m., on January 15, 1912, to go to his work in the switchyard; that while passing down Dodson street, and in attempting to cross Alice avenue, which there intersected Dodson street, he suddenly fell into a ditch in the center of Alice avenue, which was being dug for the purpose of placing a sewer. It was a dark night and drizzling rain was falling. The ditch was deeper than the plaintiff's head, and there was no light of any kind in the vicinity that shed any light on the place where he fell. The night was so dark that it was impossible to see the ditch, or even his hand before his face. He did not know how long he lay in the ditch before he regained consciousness, which he lost when he fell. Finally some parties came and tried to get him out of the ditch, but could not. Later he walked down the ditch and crawled out by means of the engine that was used for ditching. An employé of the city came to him with a light, and was asked by him, "Why haven't you got a light on this ditch?" The employé replied, "We have got more ditches than we have lights; we haven't got enough to go round." The plaintiff further testified that his knee was wrenched; that he was hurt in his side and in his groins, and was unable to work for nearly three months after the injury; that he was still weak in the back, and could not lift anything at all. The only way he can work is by wearing a brace and by having a helper to do the heavy part of his work. There is a chain of knots from the center of his stomach to his backbone, and when the brace is removed the knots enlarge. Before he was injured he was capable of earning $170 monthly, but the injury from the fall has decreased his capacity to perform labor. He testified that he had lost 95 days' time from his work at $5 per day, and that his doctor's bill and expense for medicine to the time of filing suit was $177. One of the physicians who treated the plaintiff testified that plaintiff had a chain of enlarged glands on his left side and also in his back, and that:
Another physician who had treated plaintiff's injuries testified that the injuries were severe and "will probably be permanent." There was some evidence, introduced on the part of the defendant, tending to deny the plaintiff's testimony as to the absence of light near the street intersection where he claimed to have been injured, and also some evidence tending to show that his injuries were not so severe as claimed by him.
The jury returned a verdict for the full amount sued for, $3,500. The defendant filed a motion for a new trial, and excepted to the judgment overruling this motion.
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