Macon Ry. & Light Co. v. Mason
| Decision Date | 04 August 1905 |
| Citation | 51 S.E. 569,123 Ga. 773 |
| Parties | MACON RAILWAY & LIGHT CO. v. MASON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In an action to recover damages for a personal injury it is error requiring a new trial for the court to instruct the jury as to the right of a plaintiff to recover punitive damages where the tort complained of is accompanied by aggravating circumstances, when the evidence does not warrant a charge on this subject.
In order for the jury to assess punitive damages in such an action, it is not necessary that they should be claimed eo nomine, but it is enough that the facts alleged and proved be such as to warrant the assessment.
It is competent for a party to account for the absence of an eyewitness to the occurrence under investigation, that the jury may not draw any unfavorable inferences from the failure to produce and examine the witness.
Where the person injured is a dentist, testimony as to his capacity and efficiency in his chosen profession prior to his injury is relevant as bearing directly upon the measure of damages.
One who is the graduate of a college where anatomy and physiology are taught, and who is engaged in the practice of osteopathy, and has gained experience in the treatment of nervous disorders may be examined as an expert witness, upon these facts being made to appear, notwithstanding he is not a licensed physician and does not administer drugs to his patients.
That the jury may clearly understand their duty with respect to reducing to its present cash value the gross amount which they may find to fairly represent the loss in earning capacity which the injured party has sustained, the court, in charging upon this subject, should make choice of language which is not calculated to confuse the jury because of inaccuracy of expression.
The wife of the injured party is not, because of the marital relation existing between them, and the policy of the law to preserve inviolate confidential communications between husband and wife, incompetent to testify as to the nature of the injury received by him, and its effect upon his physical condition, when there is nothing to indicate that her knowledge on the subject was gained because of any confidence which he reposed in her as his wife.
The wife may testify to symptoms which she observed indicating that her husband suffered from headache, but she should not be permitted to generalize or state any bare conclusion based upon her observation of others who had headache, she not professing to be an expert.
Error from City Court, Macon County; Robert Hodges, Judge.
Action by J. M. Mason against the Macon Railway & Light Company. Judgment for plaintiff, and defendant brings error, and plaintiff assigns cross-error. Judgment on both main and cross bill of exceptions reversed.
The wife of an injured party is competent to testify as to the nature of the injury received by her husband, and its effect on his physical condition, where there is nothing to indicate that her knowledge was gained by any confidence reposed in her as his wife.
The plaintiff below, J. M. Mason, instituted a suit for damages against the Macon Railway & Light Company, and recovered the sum of $2,500. The allegations of his petition were substantially as follows: On September 6, 1903, he boarded one of the electric street cars owned and operated by the defendant company. Two cars were coupled together; the one in front being a motor car, and the other being what is commonly known as a "trailer." There were no vacant seats upon either, so he got upon the front platform of the ""trailer." The conductor came to him and collected his fare, offering no objection to his riding on the platform. Within a few minutes, and while plaintiff was standing with his back towards the car ahead, the conductor reached over from the rear platform of that car for the purpose of applying the brake on the front platform of the "trailer," and in swinging the brake handle around struck the plaintiff a violent blow with it in the back and upon his spinal column. The conductor gave to him no warning or intimation of an intention to apply the brakes, although he was standing in a position where he would be injured if given no opportunity to move out of the way of the brake handle. He protested to the conductor "against being used in any such way," and the conductor "responded to [him] in an insulting and uncalled-for manner, in the full hearing of the other passengers on said car, greatly mortifying [him] and wounding his feelings and sensibilities." The physical injuries received are of a permanent character. The plaintiff is a professional dentist and his ability to labor at his profession has been greatly impaired.
The negligence charged was (1) in undertaking to apply the brakes save from the platform of the "trailer," and (2) in giving the plaintiff no warning that an attempt would be made by the conductor to apply the brakes while standing upon the rear platform of the car ahead. The nature of the injuries sustained, and their effect upon the earning capacity of the plaintiff, were also alleged in detail, and damages to the amount of $15,000 were asked. To the petition the defendant company demurred both generally and specially. The court overruled the demurrer, save as to one of the plaintiff's allegations to which special objection was raised, and exception was taken to this ruling upon the demurrer. The railway company also excepted to the refusal of the court to grant its motion for a new trial. By cross-bill of exceptions the plaintiff complains of the rejection by the court of certain testimony which he offered on the trial. Upon the argument here counsel for the company did not insist on the assignment of error touching the disposition made of its demurrer, and announced that the seventh and eighth grounds of the motion for a new trial were abandoned.
Dessau, Harris & Harris and Roland Ellis, for plaintiff in error.
B. M. Davis, J. F. Urquhart, and T. S. Felder, for defendant in error.
EVANS, J. (after stating the facts).
1. Complaint is made that the verdict of the jury was excessive and it is further urged in behalf of the company that this result was doubtless brought about by the grave error of the presiding judge in charging the jury as to the right of a plaintiff to recover punitive damages where there are aggravating circumstances attending the commission of a tort upon him. This charge, counsel insist, was unwarranted by the evidence, and in this view we concur. The testimony discloses that the conductor, while perhaps inattentive and inexcusably careless, committed no wanton act which resulted in injury to the plaintiff, or showed anything more than a negligent disregard for his safety. While the cars were descending a steep grade a passenger indicated his desire to disembark at the next stopping point, and the conductor signaled the motorman to stop. The motorman, realizing he could not stop the cars at that point unless the brake on the "trailer" was applied, rang his gong as a signal to the conductor to put on the brake of the rear car. As to whether the conductor, before attempting to do so, gave warning to the plaintiff and others of his intention to put on the brake, the testimony was conflicting; but there was no dispute as to his reaching for the brake from his station on the rear platform of the motor car and unintentionally striking the plaintiff while swinging the brake handle around in an effort to promptly apply the brake. There were no aggravating circumstances attending the infliction of the injury upon him. The plaintiff testified that he immediately turned towards the conductor, and said, "What do you mean by treating a gentleman that way?" and the latter "in an insulting manner" replied, "You had no business standing out there," whereupon the plaintiff said, "If you told me that when I gave you my fare, I would have gotten on another car," and the conductor replied, "You had no business standing up there." The plaintiff then said, "I did not know I was violating any rule of the company." To this remark the conductor made no response, and nothing else occurred. The plaintiff further testified: It thus appears that the plaintiff, with some show of passion, undertook to call the conductor to account for what he had unintentionally done, and that the conductor replied to him, in a manner which he regarded as insulting, that he was himself to blame, for the reason that he should not have been in the way. What the conductor said, even though he may have spoken discourteously, did not amount to an insult, or to such abusive treatment of a passenger as would render the company liable in damages. If the plaintiff was insulted, he was supersensitive; if he suffered mortification because he feared the passengers did not understand the situation, there were no grounds for his fears in this regard, for nothing was said or done to lead his fellow passengers into the mistaken belief that the conductor was trying to put him off because he had not paid his fare. Had the manner of the plaintiff been more gentle, it is not improbable that the conductor would have been civil, if not equally courteous. If, as seems to be true, it "was the plaintiff's fault that the conductor was out of tune," the...
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