Richmond & D.R. Co. v. Garner
| Decision Date | 14 October 1892 |
| Citation | 16 S.E. 110,91 Ga. 27 |
| Parties | RICHMOND & D. R. CO. v. GARNER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The defendant, on the trial of an action against a railroad company for personal injuries, having introduced testimony tending to show that the plaintiff's impaired physical condition was the result, not of the injuries alleged in the declaration to have been sustained, but of rheumatism, which he had contracted, and from the effects of which he had suffered, long before such alleged injuries occurred, there was no abuse of discretion in allowing the plaintiff, after testifying in rebuttal that he had never been afflicted with rheumatism prior to the time he was injured, to account for the absence of his wife from the trial by stating that she was detained at home by the sickness of her children, it being manifest that she had knowledge of facts which would make her an important witness concerning this issue, and the court stating, in effect, that the testimony explaining her absence was admitted only because the non-production of her as a witness might be the subject of unfavorable comment against the plaintiff before the jury.
2. The evidence being conflicting as to whether or not the plaintiff's injuries were permanent, it was not error to admit in his behalf the mortality and annuity tables in 70 Ga., to aid the jury in arriving at a proper amount of damages in case they should determine that the injuries were permanent, and that the plaintiff was entitled to recover.
3. The evidence showing that the plaintiff, an employe of a railroad company, in the course of his duty, in the daytime, after examining a ladder resting against a coal car, and testing the security of its position, had safely ascended it, and that, while he was engaged in doing some necessary work in the car, the ladder, without his knowledge, was removed by another employe of the company, who in a short time replaced it against the car apparently in the same position, and that upon the plaintiff's attempting to descend, without re-examining the ladder or again testing the safety of its position, it slipped from under him, and he fell and was injured, it was a question of fact for the determination of the jury as to whether or not the plaintiff was guilty of any negligence contributing to the injury. This question having under proper instructions from the court, been decided by the jury in his favor, the verdict will not be disturbed.
Error from city court of Atlanta; HOWARD VAN EPPS, Judge.
Action by J. A. Garner against the Richmond & Danville Railroad Company for personal injuries. Verdict for plaintiff. Defendant's motion for a new trial was overruled, and it brings error. Affirmed.
Defendant in an action for personal injuries, having introduced evidence that plaintiff's impaired physical condition was the result, not of the injuries alleged in the declaration but of rheumatism, which he had previously contracted, there was no abuse of discretion in allowing plaintiff, after testifying in rebuttal that he had never been afflicted with rheumatism prior to the time he was injured, to account for the absence of his wife by stating that she was detained at home by the sickness of her children, it being manifest that she had knowledge of facts which would make her an important witness concerning this issue, and the court stating that the testimony explaining her absence was admitted only because the nonproduction of her as a witness might be the subject of unfavorable comment against plaintiff.
The following is the official report:
Garner sued the railroad company for damages from personal injuries, which he alleged he sustained from the falling of a ladder while he was upon it attempting to descend from the cars of defendant, upon which it had become necessary for him to go as an employe of defendant. He alleged that, after ascending into the car upon the ladder safely, an employe or employes of defendant moved the ladder, and replaced it in a negligent, careless, and insecure way, so that when he went upon it in descending it fell with him. His declaration described his injuries, and alleged that he would continue permanently to suffer. He was given a verdict for $700, and, defendant's motion for new trial being overruled, it excepted.
The grounds of the motion were that the verdict was contrary to law, evidence, etc., and the charge of the court; that the verdict was so decidedly contrary to the evidence as to shock the moral sense; and that the verdict showed bias and prejudice in the jury against defendant. Also that the court erred in permitting plaintiff to testify that his wife was absent from the trial because she was detained at home by the sickness of her little children, over the objection of defendant that this evidence was irrelevant and immaterial, and did not tend to throw light upon any of the issues in the case. In a note to this ground the court states: "Before this, evidence had been introduced tending to show that plaintiff had been confined to his house for some time previous to the occurrence in question, with rheumatism, a fact which, of course, his wife would know much about." The court, in allowing her absence to be accounted for, stated as follows, in the hearing of the jury, restricting the purpose for which the testimony was admitted: Also that the verdict was contrary to the following portion of the charge: "Plaintiff was bound to use ordinary care or common prudence throughout the entire transaction of going on the ladder or coming down again,--such care and diligence as every prudent man would use under the same or similar circumstances; and if, by using this degree of care, he could and ought to have discovered that the ladder was not properly adjusted and safe for use before he undertook to use it, or if he was guilty of any negligence in his way of getting on it, or attempting to come down it, or otherwise in his conduct in that transaction, which contributed to his getting hurt, he cannot recover." Further, that the court erred in admitting in evidence the tables in 70 Ga. 843-848, of expectancy and annuity, the same having been objected to when offered, on the ground that the evidence showed the injuries were not permanent in any sense, but might last two or three years. Because the evidence showed that, if plaintiff was injured at all, it was through his own fault and carelessness.
The case was tried on November 25, 1891, and the evidence for plaintiff was to the effect that the injury was inflicted about July 13, 1889. There was testimony for him that in the discharge of his duty he went upon a car by a ladder placed against the side of the car, and that, before he went to descend, the ladder had been moved without his knowledge, and replaced insecurely, and, supposing it safe, it having been replaced about the same place he had put it, he went upon it to descend, and it fell with him, and injured him. There was much evidence as to his injuries. He testified, among other things, that he was 38 years old; that he was in bed or about his room for about two weeks from the injury, and was treated by a physician about eight months; that he attempted to go back to work, but could not do full work; that he suffered "powerful,"--could not tell how much he suffered for about eight months in his knee and ankle; that since he was hurt it had been two years, and his ankle hurt him at the time of the trial, and he had to be careful in walking, or it would get a wrench; that he could not straighten his leg entirely, and if he turned his ankle in a certain way it hurt him; that it was not nearly so strong as before the injury; that he could not do as hard work now as he could before; that there was a heap of work he could not do now that he could do before, etc.; that at the ordinary run of work he could do now, compared with what he could do before the injury, not more than two thirds as much; that a full month's work in his former employment was $50, and that where he was now employed he got $2 a day; that he was now doing carpenter work, and had a partner working with him, and...
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