The Cent. R.R. v. Kelly

• Decision Date: 31 January 1877
• Citation: 58 Ga. 108
• Parties: The Central Railroad and Banking Company, plaintiff inerr0r. v. John W. Kelly, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 108

The Central Railroad and Banking Company, plaintiff inerr0r. v. John W. Kelly, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

[COPYRIGHT MATERIAL OMITTED] Railroads. Evidence. Witness. Damages. Principal and Agent. Master and Servant. Before Judge Johnson. Jefferson Superior Court. May Term, 1876.

Reported in the opinion.

Jackson, Lawton & Basinger; R. W. Carswell, for plaintiff in error.

*Cain & Polhill; H. D. D. Twiggs, for defendant.

Jackson, Judge.

This suit was brought by Kelly against the railroad company for damages received by him while engaged in coupling the cars of the company. He was in their employment as a train hand, and this, in connection with other business, was his duty. The injury received was the mashing of the right hand so as permanently to deprive him of the use of it, and the verdict of the jury was three thousand dollars. The evidence in respect to any fault being in the plaintiff, and the negligence of the defendant's other agents, was conflicting. It was in proof that the other hand of the plaintiff had always been comparatively disabled, and one of the requests to charge seemed to be predicated upon this circumstance.

The defendant moved for a new trial on various grounds of error in admitting or rejecting evidence, in refusing to charge the jury, and the usual grounds that the verdict was against the law and the evidence, and also that the damages were excessive. The court below declined to grant the motion, and the defendant excepted. We shall consider the grounds pressed here.

1. The first of these grounds is, that the court ought not to have admitted in evidence the opinion of the plaintiff that he was damaged ten thousand dollars, and that he ought to recover that sum, all that he had declared upon.

We think that this opinion should not have gone to the jury. In his very able and elaborate opinion in declining to grant a new trial, the distinguished judge presiding presses the view that its going to the jury did no harm, even if improperly admitted, because the plaintiff alone gave his opinion that the damage was $10,000, and that the jury, by finding only $3,000, showed that they did not regard his testimony. It does showthat they did not find exactly according to his evidence, but it does not show that the *evidence did not affect their verdict. This opinion of the damage to himself, sworn to, may have increased their finding; in all probability it did; and if it did increase the finding, and if it was illegal, the defendant was injured in a material point, and a new trial should be granted: Code, § 3714, and cases cited. So that the question is, was the opinion of the plaintiff admissible, to swear, in round numbers, that he was damaged $10,000, and ought to recover that sum of money? Unless the opinion of an indifferent witness was admissible to prove the round sum of damage, it is clear that the opinion of the plaintiff ought not to be admitted. He is the last man who ought to be allowed to give the opinion, because he must be under the influence of the great bias that his own case would give to his opinion.

In examining the authorities, we are unable to find a single case where the opinion of any witness was allowed to go to the jury, that in a personal tort of this kind the plaintiff was damaged and ought to recover so much money, no matter what reasons the witness gave therefor; and we have been able to find only one case where it was ruled that such opinion was inadmissible. We suppose that the question was deemed so free from doubt, on general principles, that it has been rarely, if ever, made. In 11th Louisiana, 178, it is expressly ruled to be inadmissible, and such seem to be the deductions necessarily drawn from the text writers on evidence and damages. See Starkie, by Sharswood, side page 172, et seq.; Sedgwick on Damages, 748-9, et seq. The reason is that the jury are to estimate the damages—it is their opinion which is to form the verdict and decide the case.

2. It is true that our Code is broad upon the subject—Code, § 3867. But, after all, it is but a compendium of the common law. It simply enacts that when the question under examination and to be decided by the jury, is one of opinion, any witness may swear to his opinion, giving his reasons therefor; but if the issue be as to fact, generally he cannot give it. In every case the verdict at last is the *opinion of the jury on the evidence, and we cannot think that our law is, that in every case the jury may base their opinion upon the opinion of witnesses of what the damage ought to be; or that every witness, by giving a reason for it, may tell the jury: "I think in this case you ought to give ten thousand dollars, or one thousand, or any other given sum, because the pain must have been great, and the loss of the limb did the plaintiff much harm." We think that the meaning of the Code is the old law—when the issue is one of opinion, as sanity or insanity, or hand-writing, or the value of an animal, or such matters as are matters of opinion only, and can be better elucidated in that way, there experts may give opinions without reasons, and anybody familiar with the facts may give his opinion with his reasons.

In a case like this, especially, we think the opinion ought not to have been admitted. The plaintiff had as well have been permitted to swear broadcast to his whole declaration. Besides, although he states, in other parts of his evidence, how he was hurt, he does not itemize, even in opinion, the several items which, in...