Southern Cotton Oil Co v. Skipper

• Decision Date: 14 May 1906
• Citation: 54 S.E. 110,125 Ga. 368
• Parties: SOUTHERN COTTON OIL CO. v. SKIPPER.
• Court: Georgia Supreme Court

54 S.E. 110

125 Ga. 368

SOUTHERN COTTON OIL CO.

v.SKIPPER.

Supreme Court of Georgia.

May 14, 1906.

1. Evidence—Opinion Evidence.

Whether a person could or could not have known of a fact is a matter for the determination of the jury from the circumstances disclosed by the evidence, and not for the expression of an opinion by a witness. Mayor and Council of Milledgeville v. Wood, 40 S. E. 239, 114 Ga. 370.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 2156.]

2. Master and Servant—Injury to Servant—Defective Machinery—Duty of Master.

A master is bound to exercise ordinary care in furnishing machinery reasonably safe for all employés who operate it with ordinary care and skill. If there are latent defects in machinery, or dangers incident to the employmentunknown to the servant, of which the master knows, or ought to know, he must give the servant warning in respect thereto. A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In suits for injuries arising from negligence of the master in failing to comply with the duties thus imposed, it must appear that the master knew or ought to have known of the defects or danger in the machinery supplied; and it must also appear that the servant injured did not know, and had not equal means of knowing, such fact, and by the exercise of ordinary care could not have known of it. Civ. Code 1895, §§ 2611, 2612.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 173, 174, 297, 538, 574.]

3. Trial—Instructions.

If the trial judge fully and correctly charges the law in regard to a particular issue, it will not furnish any ground of reversal that he did not charge on that subject in the language of the written requests made by counsel.

[Ed. Note.—For cases in point, see vol. 46, Cent Dig. Trial, §§ 664, 665.]

4. Master and Servant—Injury to Servant.

It was not error to refuse to charge that if a machine was defective, but an employé undertook to operate it in a manner in which it was not intended by the master to be operated, and that by reason of the manner in which plaintiff undertook to operate it he was injured, he could not recover. This seeks to make the intention of the master as to the manner of operating a machine controlling on the employé, without regard to the knowledge or diligence of the latter.

5. Same—Assumption op Risk.

An employé who has the choice of two ways of doing a given piece of work, the one safe and the other dangerous, is under a duty to his employer to select the former; and if, instead of so doing, he voluntarily selects the latter, when he knows, or ought in the exercise of due care on his part to know, of the danger, he cannot recover of the employer for injuries thus sustained. Central Railway Co. v. Mosely. 38 S. E. 350, 112 Ga. 914; Matthews v. Raleigh & Gaston R. Co., 36 S. E. 926, 111 Ga. 711.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 745.]

6. Same—Instructions.

The request to charge on this subject only partially stated the rule, omitting the element of knowledge or negligence on the part of the

employe.

7. Trial—Instructions.

Where there was no issue in the case involving the duty of the master to exercise ordinary care in the selection of servants, and not to retain them after knowledge of incompetency, the court should not have charged on that subject. The charge should not include issues not in the case.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 587, 593.]

8. Same—Questions for Jury.

As a general rule it is error for a court to charge the jury, in effect, that certain specified facts would constitute negligence. The cases where certain acts constitute negligence per se, under the operation of a statute or valid ordinance, are exceptions. Mayor and Council of Milledgeville v. Wood, 40 S. E. 239, 114 Ga. 370; Atlanta & West Point Railroad Co. v. Hudson, 51 S. E. 29, 123 Ga. 108.

9. Same.

Language used in an opinion of the Supreme Court in discussing the facts of a case is not always appropriate for use by a trial judge in charging a jury. Atlanta & West Point Railroad Co. v. Hudson, supra; Macon Railway Co. v. Vining, 51 S. E. 719, 123 Ga. 770.

10. Damages—Personal Injuries — Future Pain.

Where a declaration seeking to recover damages for personal injury alleged that by reason thereof the plaintiff "has been disfigured for life, and has been injured permanently, has entirely lost his left foot and part of his left leg, " that his earning capacity has been reduced three-fourths, that "besides all these great injuries petitioner has suffered terrible bodily pains and excruciating mental anguish by reason of the injury complained of, " and that "by reason of these injuries petitioner has been damaged to the amount of $10,000, " and where evidence was introduced as to the loss of the limb and the suffering resulting therefrom, continuing at the time of the trial, a charge as to future pain and suffering was not erroneous on the ground that the petition did not claim damages for such future pain and suffering. Atlanta Street Railway Co. v. Jacobs, 15 S. E. 825, 88 Ga. 647.

11. Same.

Where by reason of an injury the plaintiff lost his leg, and more than two years thereafter, at the trial, testified that he had suffered great pain, and still suffered, there was sufficient evidence to authorize a charge as to future pain and suffering. Macon Railway Co. v. Streyer, 51 S. E. 343, 123 Ga. 279; O'Neil Mfg. Co. v. Pruitt, 36 S. E. 59, 110 Ga. 579; Southern Ry. Co. v. Clariday, 53 S. E. 461, 124 Ga. 958.

12. Master and Servant — Injury to Servant—Contributory Negligence.

In Hill v. Callahan, 8 S. E. 730, 82 Ga. 113, following in part the decision in Pierce v. Atlanta Cotton Mills, 4 S. E. 381, 79 Ga. 782, it was held that in a suit by an employé for injuries received by him while in the service of his employer, where the evidence authorizes it, the better practice is to instruct the jury as to the law of this state, which does not prevent a recovery by an employe for injury arising from the negligence of the master, although the employé may in some way have contributed to the injury sustained, and in regard to the reduction of the recovery which might otherwise be had in proportion to his negligence, if it be not such as to prevent a recovery, yet that a reversal would not result from a failure to so charge, when the plaintiff sought to recover full damages and alleged that he was without fault, and no request was made to charge on the subject of reducing damages. See, also, Ingram v. Hilton & Dodge Lumber Co., 33 S. E. 961, 108 Ga. 194; Glaze v. Josephine Mills, 46 S. E. 99, 119 Ga. 261.

13. Witnesses—Impeachment.

The charge of the court on the subject of impeaching witnesses referred to only one method of impeachment, when the evidence tended to show impeachment both by contradictory statements and by general character. It was, moreover, fragmentary and confusing.

14. Damages—Personal Injuries.

Damages are given as compensation for the injury done, and generally this is the measure, where the injury is of a character capable of being estimated in money. Civ. Code 1895, § 3905.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 222.]

15. Same—Loss of Earnings.

In an action for a personal injury of a permanent character, where the plaintiff is entitled to recover full damages, one element, if sued for and if the evidence authorizes it, is a fair and reasonable compensation for the loss of what he would otherwise have earned in his trade or profession.

16. Same.

As to the element of damages which includes pain and suffering, a reasonable sum is recoverable, to be determined by the jury.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, §§ 71, 233.]

17. Same—Evidence.

The mere statement on the part of the plaintiff, as a witness, that he wanted to be a contractor, was inadmissible.

(Syllabus by the Court.)

Error from City Court of Dublin; J. E. Burch, Judge.

Action by B. F. Skipper, by bis next friend, against the Southern Cotton Oil Company. Judgment for plaintiff, and defendant brings error. Reversed.

Skipper brought an action against the Southern Cotton Oil Company to recover damages for a personal injury. A verdict for $2,500 was rendered in his favor. The defendant moved for a new trial, which was refused, and it excepted.

Dessau, Harris & Harris and Griner & Adams, for plaintiff in error.

K. J. Hawkins, M. H. Blackshear, and R. D. Flynt, for defendant in error.

BUMPKIN, J. (after stating the foregoing facts). In one respect this case brings to mind the words of Juvenal: "Rara avis in terris, nigroque simillima cygno." Its quality of rarity consists in the fact that counsel for both sides concur in the opinion that the trial judge erred in giving to the jury a particular charge and that a new trial should be granted. In this unusually harmonious view we concur with them. Thus is furnished the spectacle (more rare indeed than a black swan) of a court of last resort being able to render a judgment which, as to one point at least, meets the concurrent views of counsel for both litigants. At this point, however, the harmony ends, and there are numerous subjects...