Central Railroad v. Coggin , 73 Ga. 689 ( 1884 )

Hall, Justice.

The jury having found a verdict for the plaintiff, the defendant made a motion for a new trial, which was refused, and this writ of error is brought to reverse the judgment refusing the new trial.

The following are the grounds of the motion:

(1.) Because the court erred in allowing the plaintiff to testify, over the objection of defendant, as follows: “ As he (the engineer) slacked up for the switchman to get on the train, he seemed to have shut off his engine, and car ran up on the engine, and he opened his engine right suddenly; I suppose,” — the objection being that it was mere supposition on the part of witness, and not anything within his own knowledge.

(2.) Because the court erred in allowing the plaintiff to testify, over the objection of defendant, as follows: “ That he was sixteen years old at the time he was injured by the railroad,” — the defendant insisting that he couldn’t so testify unless he showed from what source he derived the information, and also when and where he was born.

(3.) Because the court erred in allowing the plaintiff to testify, over the objection of defendant, “thathis capacity to labor had been diminished by this injury fully one-half.”

(4.) Because the court erred in charging the jury as follows: “Or if you should believe that the engineer of that company, without cause, needlessly and unnecessarily^ put on great force of steam, and thereby caused a violent jerk, then it is for the jury to say whether that is negligence or not; and if you should find that it was negligent or causeless, then, of course, the man would be entitled to damages, whatever damages he has sustained.”

(5.) Because the court erred in charging the jury as follows: “ Look to see upon what train they were going out, how that train was managed, whether it was under the control of the employés of the Central Railroad Company, or whether it was under the control of the employés of the Telegraph Company. Did Mr. Awtry have control of the engine, and did he tell this man, Orr, how to run his engine, when to put on steam and when to take it off, or did he simply give him directions, ‘ I want you to go so many miles an hour, so these poles can be thrown off;’ see what grade they were going up, whether the cars were tight, whether there was any slack, and determine from the evidence, if there was no slack, whether the jerk could be produced. You have heard the evidence. I cannot tell you what my opinion is, but you must determine whether that violent or sudden jerk could be produced at that time and under those circumstances. You must determine whether it was needlessly and carelessly done. Then, on the other hand, you may look to see whether the steam was shut off or not, whether any brakes were put on, or whether the engine was reversed, or whether it came to a slower run than the cars behind it, and if so, was there any slack produced by that; then look to see whether any steam was put on, and if so, how much. Look to all the facts as disclosed by the evidence, and determine whether there was any violent or unnecessary jerk; and if you find that there was any, and that the engineer was negligent and did not perform his duty in a skillful manner, then, I say, you would be authorized to find for the plaintiff.”

(6.) Because the court erred in charging the jury as follows : “ As I told you, negligence is for you to determine, by looking at all the facts and circumstances of the case, as to whether the engineer needlessly and unnecessarily put on too much steam and caused a violent and sudden jerk. That is what he alleged — that he put on that steam and jerked the engine when there was no use of it. The railroad says, in the first place, that it did not do that, and that is for you to determine. Now iook to see whether that was true or not; whether, in running that engine, he put on this steam at a time when he ought not to have done it, and caused a jerk which he ought not to have caused; and in this connection you may, to see, even if there was a jerk, whether it was necessary for the en. gineer, in carrying out the orders of Awtry, to run so many miles an hour, if there was such an order, and whether it was necessary to put on steam to run that many miles an hour.”

(7.) Because the verdict of the jury is contrary to the evidence.

(8.) Because the verdict of the jury is contrary to law.

(9.) Because the court erred in charging the jury that negligence is a question for the'jury — whether it was needlessly and carelessly done; that is, whether the injury to plaintiff was done by the defendant needlessly and care, lessly.

1. There is sufficient evidence to sustain the verdict. The judge who tried the case was satisfied to let it stand, and we cannot say that he abused his discretion in so doing.

2. The question of negligence was fairly submitted to the jury. The rule on this subject has been too long settled and too uniformly applied to admit of further qualification or modification. In this instance there has been no departure from it, as usually announced and recognized.

3. The charges of the court excepted to in the 4th, 5th and 6th grounds of the motion are in accordance with the law, as declared in this case, when it was formerly before this court. 62 Ga., 685. Whether that decision be right or wrong, it is immaterial to inquire; it is enough to know that it is the law of this case. Neither this nor the superior court lias power to modify or change it. We could not do so if we would ; and it is proper to say that we would not if we could, as we deem it a sound and correct exposition of the principles applicable to this controversy.

4. There was no error in allowing the plaintiff to testify to his age, without first requiring him to show from what source he derived his information, and when and where he was born. If the defendant had deemed this important, it had the opportunity of testing the correctness of his statement by asking, on cross-examination, how he got his information as to his age, and likewise as to the time and place of his birth. The law does not circumscribe or limit the sources from which such information may be derived. Contrary to the general rule, resort may be had to hearsay testimony to establish such facts. From the very nature of the inquiry, this is, in most instances, a necessity. Code §3770. It is admissible, in cases of marriage and death, to establish relationships and pedigrees. The rule admits the declarations of deceased relatives or the general reputation in the family. Ib., 3772.

5. Neither was there error in allowing the plaintiff to testify as to the extent his capacity to labor was diminished in consequence of the injury he had received; the nature and character of these inj uries having been testified to both by himself and others, and he having likewise shown the reduction of his wages, growing out of infirmities consequent upon this injury.

6. Taken in connection with other facts to which he deposed, the plaintiff did not indulge in mere suspicion when he testified that, “ as the engineer slacked up for the switchman to get on the train, he seemed to have shut off his engine, and the car ran up on the engine, and he opened his engine right suddenly, I suppose.” The supposition relates only to the sudden opening of the engine, and from the effects produced, amounts to nothing more than an opinion that such was the case. In every instance where the subject under investigation is a proper one to be illustrated by the opinions of experts, unskilled persons may give their opinions, provided they accompany them with the facts from which the opinions are deduced. Central R. R. Ga. vs. Senn, decided at this term; McLean vs. Clark, 47 Ga., 24.

Judgment affirmed.