Macon Consol. St. R. Co. v. Barnes

• Citation: 38 S.E. 756,113 Ga. 212
• Parties: MACON CONSOL. ST. R. CO. v. BARNES.
• Decision Date: 24 April 1901
• Court: Supreme Court of Georgia

38 S.E. 756

113 Ga. 212

MACON CONSOL. ST. R. CO. v. BARNES.

Supreme Court of Georgia

April 24, 1901

Syllabus by the Court.

1. Proof of facts collaterally pertinent to the issue on trial is, though they are not alleged in the plaintiff's petition, admissible in his behalf.

2. Evidence of the violation by a railroad company of a valid municipal ordinance is, if the same was a part of the res gestæ of an occurrence under investigation, admissible, and may be made the subject-matter of appropriate instructions to the jury.

3. It is not erroneous to instruct a jury that, relatively to passengers, it is the duty of a railway company to use "extreme care and caution," when, in connection with the words quoted, the court employs language appropriately limiting and explaining their meaning.

4. The rule of law requiring railway companies to exercise extraordinary diligence in protecting their passengers from injury applies as well to the construction and maintenance of tracks as to the operation of cars thereon.

5. A judge, in stating to a jury what are the plaintiff's contentions, may properly call their attention to any allegations of the petition which have not been demurred to and stricken therefrom, and which are supported by evidence.

6. An instruction, in the trial of an action against a railway company for personal injuries, that, if the plaintiff shows a prima facie right to recover, it is incumbent upon the defendant "to establish, by a preponderance of the evidence, one of two facts, either that it was without negligence, or that the plaintiff could have avoided the consequence of the negligence by the exercise of ordinary care," is not rendered erroneous because of a failure to charge in the same connection upon the law of contributory negligence and apportionment of damages, the more especially when the legal rules bearing upon this subject are, in connection with instructions given upon the measure of damages, fully and fairly stated.

7. When, in such a trial, the court explains to the jury what constitutes an unavoidable accident, and instructs them that if the injury to the plaintiff was the result of such an accident the defendant is not liable, an instruction in the language above quoted is not open to the objection that "it did not permit the jury to consider the defense that said injury was caused by an unavoidable accident."

8. A jury is not bound to accept as true the literal statements of witnesses, but may reject the same, when inconsistent with reason, or with facts which have been duly established to their satisfaction.

9. It is not erroneous to refuse to give in charge a written request setting forth a proposition which is an absurdity though it may be manifest that this is the result of a palpable and unintentional error upon the part of counsel in framing the request.

10. Even if error be committed in compelling a party to produce a paper, it will not, if harmless to him, entitle him to a new trial.

11. The requests to charge not dealt with above were, so far as legal and pertinent, sufficiently covered by the general charge given in the present case. The charge as a whole was a fair presentation of the law, and embraced no error which could have been prejudicial to the defendant.

12. The evidence warranted a finding in the plaintiff's favor and, after a careful review of the same, it does not affirmatively appear that the trial court abused its discretion in holding that the verdict was not excessive in amount.

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

Action by A. E. Barnes against the Macon Consolidated Street-Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Bacon Miller & Brunson and Hardeman, Davis, Turner & Jones, for plaintiff in error.

Dessan, Harris & Birch, Roland Ellis, and Lane & Park, for defendant in error.

LUMPKIN P.J.

This case, because of its importance, has received very careful attention. We have, however, after a thorough examination of it, become convinced that its chief element of importance lies in the fact that the verdict is for so large an amount. Indeed, the question whether or not the verdict is excessive has given us more serious concern than any other. A. E. Barnes brought an action against the Macon Consolidated Street-Railroad Company for personal injuries caused by his being violently thrown from the platform of a car upon which he was riding, and which was suddenly derailed in going around a curve. The jury returned a verdict in his favor for $10,000. The company made a motion for a new trial, which was overruled, and it excepted. We will now undertake to deal with every material point made therein.

1. The plaintiff was sworn as a witness in his own behalf. He minutely described his injuries, and after stating, in effect, that they were very severe, testified, further, that he had never recovered from them, that his health was still seriously impaired, and that he continued to suffer constant and intense pain. He also testified, in substance, that he had resumed, as far as he was able, his ordinary work. In this connection, his counsel asked him the question. "What makes you work?" and he answered: "I have got to do it. I have a wife and three children to support, and nothing to support them with but what I make by my work." Upon objection by the defendant's counsel to this answer, the court ruled that while it was not material how many children the plaintiff had, and that the jury need not consider that, it was admissible for the witness to state that he had a family to support as a reason why he kept up his work. To this conclusion we agree. The contention of counsel for the company that the fact that Barnes had a dependent family in no way bore upon his right to recover, and shed no light upon the measure of his damages, was certainly well founded; but this fact was relevant for the purpose of explaining his conduct, and, under the circumstances, had a direct bearing upon the weight and credibility of his testimony. He was on the stand asking the jury to believe that he was then and there still a sufferer from the injuries of which he complained, and at the same time informing them that he had, before the trial, entered upon the performance of his regular work, which he described as extremely arduous and laborious. Did he not thus subject himself to the charge of insincerity in claiming that he had not been restored to health and vigor? Who could fairly say he did not? Why, then, was it not legitimate and proper for him to explain this apparent inconsistency by stating that he was obliged to work in order to support his family? An honest man could truthfully say: "Though I am enfeebled by sickness and racked with pain, I work because I must do it, or my family will be in want." A man in the daily performance of very hard and exhausting labor would scarcely be able to make others believe that he was an invalid and a sufferer, unless he gave some good reason for continuing to toil. He might give one that would be accepted as satisfactory. In the absence of any, he would most probably be classed as sound and well, and attempting to deceive for a selfish and dishonest purpose.

We are free from doubt that, for the purpose for which the court below held the testimony now under consideration competent it was admissible. See, in this connection, Railroad Co. v. Ware, 112 Ga. 663, 37 S.E. 975, in which this court held that proof of a fact not alleged in the plaintiff's petition as a ground of recovery was nevertheless admissible if, during the progress of the trial, the same became collaterally pertinent. The comments of Mr. Justice Lewis on pages 664 and 665 are, in principle, applicable to the present case. The ruling made in Railroad v. Rouse, 77 Ga. 393, 3 S.E. 307, relied on by counsel for the plaintiff in error, is not at all in point. The decision there was simply to the effect that, in the trial of an action by a widow for the homicide of her husband, neither the number of her minor children nor their means of support were, so far as related to the measure of damages, matters in issue; and accordingly a charge recognizing "an estimate made upon what would be required to support the wife and children, in arriving at the amount of damages," was held to be erroneous. See page 408. The value of the life was the measure of the damages, and it was necessarily the same whether the deceased had many or few children, or whether they were well provided for or not. The correctness of the doctrine laid down in the Rouse Case was, at the very outset of this discussion, conceded. We were asked to overrule the decision in Wilson v. White, 71 Ga. 506, to the effect that it was competent for the plaintiff, in an action for personal injuries, to testify that after receiving the same she was without means, and was forced to sell her house and lot to raise money for her support; the court ruling that "such testimony was not irrelevant in the ascertainment of general damages resulting directly from the wrong of which she was the victim." Though of the opinion that the correctness of this decision may well be doubted, it is not now necessary to so decide; for this case is no more in point than the one last cited supra. The court held that the testimony of Mrs. White indicated above was pertinent with respect to the measure of damages. This ruling, whether right or wrong, has no bearing on the question in hand; for in the present case the court allowed Barnes to testify as stated solely for the purpose of explaining why, though professing to be a sick and suffering man, he kept up his work. It would have been entirely proper for the defendant's counsel to have requested a distinct instruction that the jury should...