Western & A. R. Co v. Hyer

• Decision Date: 18 July 1901
• Citation: 39 S.E. 447,113 Ga. 776
• Court: Georgia Supreme Court
• Parties: WESTERN & A. R. CO. v. HYER.

39 S.E. 447

113 Ga. 776

WESTERN & A. R. CO.

v.HYER.

Supreme Court of Georgia.

July 18, 1901.

APPEAL—RECORD—JUDICIAL COGNIZANCE— DEATH OF EMPLOYE—DAMAGES.

1. A mere statement in a brief of evidence that the plaintiff "introduced in evidence the mortality and annuity tables in the seventieth Georgia Report" does not authorize this court to take judicial cognizance of the contents of the tables published by the official reporter as an appendix to that volume.

2. The right of the plaintiff in the present case to recover of the defendant was clearly established, and it does not appear that the verdict was excessive.

Simmons, C. J., and Lewis, J., dissenting.

(Syllabus by the Court.)

Error from superior court, Bartow county; A. W. Fite, Judge.

Action by Fannie Hyer against the Western & Atlantic Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Payne & Tye and J. M. Neel, for plaintiff in error.

Burton Smith and Albert S. Johnson, for defendant in error.

LUMPKIN, P. J. Mrs. Fannie Hyer brought against the railroad company an action for damages for the homicide of her husband, who, while in the defendant's service as a locomotive engineer, was killed in a collision. There was at the trial ample evidence to show that with respect to this collision the defendant was negligent. Its main contention was that the deceased was also guilty of negligence contributing to his death. The jury returned a verdict for $5,500 against the company. It made a motion for a new trial, which was overruled, and it excepted. The grounds of this motion were that the verdict was contrary to law and to the evidence, that it was excessive, and that the court erred in giving certain instructions to the jury as to the manner of using the mortality tables appearing in 70 Ga. 844-848, Append., and in failing to give certain other instructions in relation thereto.

1. The first question presented for our consideration is whether or not, in view of the brief of evidence, we can properly undertake to pass upon those grounds of the motion which allege error in charging or omitting to charge with reference to the tables above mentioned. An examination of the brief of evidence discloses that it contains but a single reference to these tables, the same being expressed as follows: "Plaintiff here introduced in evidence the mortality and annuity tables in the seventieth Georgia Report." It is manifest that, in the absence of certain and definite information as to the contents of the tables thus referred to, no reviewing court could intelligently determine what should or should not have been charged with respect thereto. The truth of this self-evident proposition was conceded by the learned counsel for the plaintiff in error, but their insistence was that the meager reference in the brief of evidence to the seventieth volume of our Reports was all that was necessary to bring before this court the matter appearing on the designated pages of that report. In other words, they contended that, as the brief of evidence showed that certain tables appearing on those pages were introduced in evidence, this court should take judicial cognizance of what was there shown. To this we cannot agree. The mere fact that certain tables were published by the official reporter of this court in the form of an appendix to the seventieth Georgia does not anthorize us to take judicial notice of the contents of the tables there to be found. On the contrary, we have no authority to look outside of the record of any given case for the purpose of discovering something which that record should, but does not, itself disclose. So far as we have been able to ascertain, the furthest this court has ever gone in treating as evidence a document not set forth either in a brief of evidence or bill...