Southern Ry. Co v. Bottoms, (No. 16859.)

• Decision Date: 02 October 1926
• Docket Number: (No. 16859.)
• Citation: 35 Ga.App. 804,134 S.E. 824
• Parties: SOUTHERN RY. CO. et al. v. BOTTOMS.
• Court: Georgia Court of Appeals

35 Ga.App. 804

134 S.E. 824

SOUTHERN RY. CO. et al.

v.BOTTOMS.

(No. 16859.)

Court of Appeals of Georgia, Division No. 2.

Oct. 2, 1926.

(Syllabus by Editorial Staff.)

Error from Superior Court, Clayton County; John B. Hutcheson, Judge.

Suit by Mrs. C. H. Bottoms against the Southern Railway Company and another. Judgment for plaintiff, and defendants bring error. Reversed.

McDaniel & Neely, of Atlanta, and Oscar J. Coogler, of Jonesboro, for plaintiffs in error.

W. H. Reynolds, of Jonesboro, and Jesse L. Moore and Harwell, Fairman & Barrett, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1, 2] 1. The correct rub; for computing damages for negligence in a suit against a railway company is that, where both the defendant and the plaintiff are negligent, a recovery by the plaintiff must be diminished in proportion to the default attributable to him. Civil Code 1910, § 2781. In a suit against two defendants, a charge that the damage which the plaintiff would be entitled to recover should "be reduced, as you may find their negligence to be, " is not a full and clear statement of the rule.

In a suit for personal injuries against a railway company and another defendant jointly, where the evidence authorizes the inference that the plaintiff was negligent, it was error prejudicial to the defendants not to give in charge to the jury a written request, timely made, to the effect that if the jury should find that the plaintiff was negligent in a degree less than the negligence of the defendants, the damages which the plaintiff might be entitled to recover shall be diminished in proportion to the amount of default attributable to her, where the only reference of the court in his charge to the reduction of damages by reason of the plaintiff's negligence was to the effect that the damage recoverable should be reduced as the jury might find the negligence of the parties to be. Where a verdict was rendered for the plaintiff, such error demands a new trial for the defendants.

2. Pain and suffering not having any marketable value, and money compensation therefore not being susceptible to mathematical determination, but the amount of recovery therefor being left to the enlightened consciences of impartial jurors (Civil Code 1910, § 4504; Linder v. Brown, 137 Ga. 352 (6), 73 S. E. 734; Betts Co. v. Hancock, 139 Ga. 198 (6), 77 S. E. 77), a jury in a personal injury suit, where damages for future pain and suffering are sued for, should not be instructed that the amount representing the monetary compensation for future pain and suffering should Be reduced to its present worth. (Bostwick v. Pittsburgh Rys. Co., 255 Pa. 387, 100 A. 123; Ford v. Philadelphia, etc., Co., 262 Pa. 514, 105 A. 885; Sebastian v. Philadelphia, etc., Co., 262 Pa. 510, 105 A. 887.)

See, also, Gallagher v. Monroe, 222 Mich. 202, 192 N. W. 609; Denman v. Johnston, 85 Mich. 387, 48 N. W. 565.

It would be proper, however, in such a case to instruct the jury that, in awarding damages for future pain and suffering, they should give consideration to the fact that the plaintiff is receiving a present cash con-sideration for damages which have not yet been sustained.

3. In a suit for damages against a railway company and one of its servants jointly, in which it was alleged that the plaintiff, who was on the premises of the defendant railway company, as a matter of right, for the lawful purpose of accompanying her sisters who were about to board a train of the defendant railway company, was injured by reason of stepping into an unguarded ditch, which it was claimed the defendants had left on or dangerously near the station premises of the defendant railway company, a charge by the court, in the language of section 4420 of the Civil Code 1910, that a duty rested upon an owner of premises, who by express or implied invitation induces another to come upon the premises, to use ordinary care to keep the premises and approaches "safe, " was a correct statement of the law, since it was taken from the Code section; and it was not error as against the defendants where the judge elsewhere in his charge, in applying the Code section to the evidence, speciflcially stated to the jury that the duty rested upon the defendant railway company to keep its premises "reasonably safe."

4. Since the law, as laid down in section 4420 of the Civil Code 1910, requires that the owner of land who invites others to come thereon shall exercise due care to see that the premises and its approaches are safe, a charge to the jury to the effect that such a landowner is under the duty to see that the premises are "in such condition that the person invited may approach and remain thereon in safety" is an inaccurate and...