"Petitioners assign error upon the ruling and decision of the Court of Appeals in said case, affirming the judgment of the lower court, and for more specific and distinct assignments of error petitioners allege:
"First. Petitioners assign error upon the decision of the Court of Appeals of the state of Georgia, as set forth in the opinion of said court in paragraph 1 thereof, as follows: '1. When considered in the light of the facts of the case and the entire charge of the court, none of the excerpts from the charge as complained of show reversible error.' Petitioners aver that the said decision is erroneous, for that said case is one in which a verdict could have been rendered for the defendants upon the facts; that a verdict, according to defendants' contentions, was demanded upon the ground of the assumption of risk; that a verdict for the amount of the contribution to the beneficiaries during the years which each would have been entitled to such benefit, and not beyond, might have been rendered; that a verdict greatly reduced by contributory negligence of the decedent might have been rendered, there being evidence of gross contributory neg
ligence in the aspect of the case most favorable to plaintiff. In view of such evidence it could not be determined what elements went to make up the verdict; the same being for a gross sum. From this portion of the opinion it is apparent that the Court of Appeals does not hold that the portions of the charge complained of did not constitute error, but only holds that, when considered in the light of the facts and the entire charge of the court, none of the excerpts complained of show reversible error. It is respectfully urged that reversible error was committed by the trial court in its charge, and that this error was never corrected in the only manner provided, according to the decisions of the Supreme Court of the state of Georgia.
"7. The seventh ground of the amended motion for new trial complains of the charge of the court upon the measure of damages under the Employers' Liability Act of Congress, as follows: 'Then, when you finally determine, gentlemen, the total sum that would represent the losses of Mrs. Tomlin and her two children, you would have to reduce that to its present cash value. And in the matter of ascertaining that, gentlemen, you would find first how much they would have lost annually; what would be their annual loss. And in determining this, gentlemen, you would take into consideration the fact that old age as it comes on would have reduced Mr. Tomlin's capacity to labor and earn money, and take into consideration the uncertainty of business, the difficulty of obtaining and keeping employment, and the fact that a person rarely, if ever, labors every day of his life, and make due allowance for all such considerations. Then you would determine whether, if there was a reduction of his earning capacity, there would be a reduced amount to go to these beneficiaries, and in this way ascertain what you think would represent their annual loss. Then, by multiplying the annual loss by the number of years that you think they would have lived—that is, the joint lives of Mr. and Mrs. Tomlin, and the lives of the two children until they were 21 years old—you would get the total amount of the loss. You would ascertain these amounts to the wife and two children separately, make the calculation separately, because Mrs. Tomlin's expectancy, and her husband's expectancy, may be greater than the period of minority of the children, so, when you get the annual loss of each one, you would add those sums together, and that would give you the total annual losses. Then by multiplying the total annua] loss by the number of years of the expectancy involved, you would get the gross sum or total sum to be allowed. As I said, gentlemen, when you finally ascertain this sum, it becomes your duty to reduce it to its present cash value, which would be a less sum, and this can be done by any correct method of calculation satisfactory to yourselves."
"In giving this instruction the court committed a clear error of most hurtful character, since the jury was instructed to arrive at the gross amount of damages to which the respective beneficiaries would be entitled, by combining the annual losses of the beneficiaries, and by multiplying the combined annual losses by the combined expectancies of the beneficiaries. The language containing this error is found in that portion of the instructionshereinbefore quoted, as follows: 'Then, by multiplying the annual loss by the number of years that you think they would have lived, that is, the joint lives of Mr. and Mrs. Tomlin, and the lives of the two children until they were 21 years old, you would get the total amount of the loss. You would ascertain these amounts to the wife and two children separately, make the calculation separately; because Mrs. Tomlin's expectancy, and her husband's expectancy, may be greater than the period of the minority of the children. So, when you get the annual loss of each one, you would add these sums together, and that would give you the total annual losses. Then by multiplying the total annual loss by the number of years of the expectancy involved, you would get the gross sum or total sum to be allowed.' This extract from the charge cannot be read without revealing the glaring error which it embodies. It was properly made the basis of ground for new trial, and it is respectfully submitted that such error as is contained in this instruction could not be cured, unless the same was specifically and unqualifiedly withdrawn by the court from the jury's consideration, and there is no pretense that this was done. It was not corrected by any other portion of the charge. It could only be corrected by pointing out to the jury the fact that it was error and withdrawing it from their consideration. The Court of Appeals has, therefore, disregarded the decision of the Supreme Court of Georgia, which set out the only proper method of correcting an erroneous charge in the following cases, to wit: Savannah Railway Co. v. Hatcher, 118 Ga. 273, 45 S. E. 239, in which Mr. Justice Lamar, citing with approval Americus Railroad Co. v. Luckie, 87 Ga. 6, 13 S. E. 105, and Macon Railway Co. v. Moore, 99 Ga. 229, 25 S. E. 460, and, after holding that the charge given was confusing, then uses the following language: 'But the defendant in error insists that this error was cured in subsequent portions of the charge. The attention of the jury was not specially called to the fact that it was intended to correct what had been previously said. The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies another, without being instructed so to do by the judge. As to how such error should be cured, see Americus R. Co. v. Luckie, supra.' The language of Americus Railroad Co. v. Luckie, referred to by Mr. Justice Lamar, is as follows: 'Upon the trial of a suit against a railroad company for personal injuries to the plaintiff, it was error to charge as follows: "If, by the exercise of ordinary care and diligence, the plaintiff could have avoided the consequences to herself of the defendant's negligence, she cannot recover; but, if both parties were at fault, and the alleged injury was the result of the fault of both, then, notwithstanding the plaintiff's negligence, she would be entitled to recover, but the amount of the recovery would be abated in proportion to the amount of the default on her part." The error consisted in stating in immediate connection with each other, and without proper explanation, two distinct rules of law, and thus qualifying the former by the latter, which is not the purpose of the statute.' The portions of the charge claimed by respondent [defend
ant in error in the Court of Appeals] to constitute proper rules of law with respect to the assessment and ascertainment of damages by the jury do not modify the rule laid down by the court herein complained of. These portions of the charge precede the portion of the charge complained of by petitioner for certiorari.
"Second. Petitioners assign error upon the ruling and decision of the Court of Appeals in said case, as set forth in the opinion of the said court affirming the judgment of the city court of Atlanta, and aver that the fourth ground of the amended motion for new...
