Western & A.R. Co. v. Sellers
| Decision Date | 17 November 1914 |
| Docket Number | 5547. |
| Citation | 83 S.E. 445,15 Ga.App. 369 |
| Parties | WESTERN & A. R. CO. v. SELLERS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The instructions as to which complaints were made submitted to the consideration of the jury the question whether the operation of the switch engine at a rate of speed less than six miles an hour was negligence or not, whereas the lowest rate of speed which the pleadings authorized to be considered as negligence was a speed greater than six miles an hour, and the instruction violated the well-settled rule that instructions should not be given which are not authorized by the pleadings.
(a) When instructions not authorized by the pleadings are given it is to be presumed that the complaining party was injured because it must be assumed that he relied upon the fact that the issues would be confined to the statements of the pleadings. A verdict must be construed in the light of the pleadings, as well as of the evidence adduced, and a verdict which rests solely upon evidence not authorized by the pleadings, or one which probably may have been induced by this evidence, is not authorized by law, and when it is equally probable that a verdict may have been based upon evidence not authorized by the pleadings as upon evidence in conformity with the contentions of the prevailing party as presented in his pleadings, an instruction which permits the jury to consider evidence not sustaining the issues submitted in the written pleadings, and consequently which authorizes a finding based solely on such evidence, is error requiring the grant of a new trial.
(b) The harmful effect of such an erroneous instruction cannot be obviated merely by a correct instruction upon the same subject, but the attention of the jury must be specifically called to the previous error, and it must be explicitly and expressly withdrawn.
The earning capacity of one who has been injured may be illustrated by proof as to the amount of compensation he was receiving at the time of the injury. Value is a matter of opinion, and the element of value may be proved by circumstances. The circumstance that a particular person was at the time of an injury, receiving a certain sum as monthly compensation for his services, while not conclusive as to the real value of the services, is some evidence as to what they were worth, and may properly be considered by a jury. Under some evidence in the record, the instruction to the effect that the plaintiff would be entitled to recover the value of any services he may have lost, although his employers may have given him his wages during the time he did not work, was authorized, under the ruling of the Supreme Court in N.C. & St. L. Ry. v. Miller, 120 Ga. 453, 47 S.E. 959, 67 L.R.A. 87, 1 Ann.Cas. 210.
There was evidence which authorized the court's instruction upon the subject of permanent disfigurement of the plaintiff's thumb.
Except as pointed out in the first headnote, the trial was free from error.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by W. H. Sellers against the Western & Atlantic Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.
Tye Peeples & Jordan, of Atlanta, for plaintiff in error.
Brown & Randolph, Parker & Scott, and Spencer R. Atkinson, all of Atlanta, for defendant in error.
Sellers recovered a verdict against the Western & Atlantic Railroad Company for $2,000 as damages for personal injuries. The defendant excepts to the judgment overruling its motion for new trial. Briefly stated, the plaintiff's petition alleged that he went to what is known as the North avenue crossing of the defendant's railway in the city of Atlanta, for the purpose of meeting his wife and children, whom he expected to alight from a train known as the "Rome Express." He alleged that this crossing was a regular stopping place for the discharge of passengers who wished to be discharged thereat, that upon the occasion in question the Rome Express did stop at this North avenue crossing, and his wife and children alighted, and that while he was crossing an intervening track of the defendant's railroad to meet them, he was run down by a switch engine, which approached the crossing and crossed it without giving any signal of its approach. It was stated in the petition that the plaintiff had previously informed the defendant's watchman at that crossing that his wife and children were on the Rome Express, and that he expected the train to stop at the North avenue crossing, but it was not alleged that the defendant was negligent in respect to the conduct of this watchman. The plaintiff set out an ordinance of the city of Atlanta forbidding any person in charge of an engine to operate it at a greater rate of speed than six miles an hour, and specified the following acts of negligence as the cause of his injury: (1) Running its switch engine over North avenue crossing at a greater rate of speed than that permitted by the city ordinance; (2) running the switch engine over a public crossing in a populous city at a high and reckless rate of speed, to wit, 15 or 20 miles an hour; (3) running the switch engine at the said reckless rate of speed over the said crossing, which was a regular stopping place for passengers on the Rome Express to alight from said train; (4) running the switch engine over the said North avenue crossing at the said rate of speed when it knew or ought to have known that the plaintiff was there for the purpose of meeting his wife and children; and (5) running the switch engine over the said crossing at the speed and under the conditions aforesaid without ringing the bell, blowing the whistle, or giving other warning of its approach. Two amendments to the petition amplified the description of the alleged injuries, and more specifically set forth the respects in which the plaintiff's capacity to labor had been diminished, and also itemized his expenditures for medicine and medical services. On the trial it was admitted that it was the defendant's custom to discharge passengers at the North avenue crossing whenever they wished to alight from the train at that point, and it was clearly shown that the plaintiff was struck by the defendant's switch engine moving in an opposite direction from the Rome Express, which on the occasion in question stopped to discharge passengers, including the plaintiff's wife and children. The plaintiff testified that the train went by like a flash; and, from his statement that he heard no signal, the jury were authorized to infer that no whistle was blown nor bell rung. The testimony is in conflict as to whether the plaintiff ran into the switch engine or the switch engine ran into the plaintiff, but the finding of the jury concluded that issue in the plaintiff's favor.
The defendant's motion for a new trial, in addition to the general grounds, is based upon certain exceptions to the charge of the court, in which complaint is made that the court submitted to the jury acts of negligence not alleged in the petition, and in giving certain instructions which were not supported by the evidence, though pertinent to the pleadings, and that the court instructed the jury that the plaintiff, if damaged, might recover the amount for lost time covered by his wages, although his employers may have given him his wages during that period.
The decision in this case depends upon whether the trial judge was authorized by the pleadings and the evidence to instruct the jury as follows, with reference to the running of the engine by...
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