Western & Atlantic Railroad v. Young , 81 Ga. 397 ( 1888 )

Bleckley, Chief Justice.

The plaintiff below, a boy nine years of age, obtained a verdict for $10,000, for personal injuries received on a public street crossing in the city of Atlanta, by reason of being thrown down and run over by the cars of the railway company, his chief injury being the loss of his right arm, which had to be amputated above the elbow. The company moved for a new trial, upon forty grounds, all of which -were overruled.

1. The last ground of the motion complains of the charge of the court to the effect that the jury might, in their discretion, award -upon discretionary damages, further damages in the- nature of interest computed at seven per cent, from the date of the injury to the time of trial. This instruction -was error. There is no authority of law for treating the jury as clothed with a double discretion, a discretion to be exercised, first, in fixing the amount of the plaintiff’s damages, and then in augmenting that amount by an assessment in the nature of interest for detention of the money, or delay of payment. As long as the principal sum was not only unascertained, but unascertainable save by the enlightened conscience of impartial jurors, the law neither appointed a day of payment nor exacted any tender.

The privilege of tendering by guess, given by statute in section 3056 of the code, is not granted as a resource to shun or stop interest, but to avoid cost. As far back as 1799, we have statutory evidence adverse to the policy of increasing verdicts on account of interest upon unliquidated demands. Cobb’s Dig. 495. It was thought consistent with this statute to increase the damages in trover by the addition of interest on the value of the property from the time of conversion. See Collier vs. Lyons, 18 Ga. 648, and other cases. So, in Railroad Co. vs. Garr, 57 Ga. 280, the power of the jury to add interest in computing damages recoverable by a widow for the homicide of her husband, is tacitly recognized. And in Railroad, Co. vs. Sears, 66 Ga. 499, there is apparently a like recognition of the power, whilst the direct adjudication was that it is not obligatory as a duty. To the same effect, perhaps, is Railroad Co. vs. McCauley, 68 Ga. 818, where the action was for killing a bull. But in all these cases the damages recoverable were special, and had to be proved by evidence applying directly or indirectly .to values; whilst in the present case there is no such evidence, and the entire recovery is for damages of a nature incapable of any standard of measurement external to the minds and consciences of the jury. .In this respect, though they are not punitive, all claim to punitive damages having been renounced at the trial, they are as indefinite and indeterminate in their elements as are damages of that class; consequently the case of Ratteree vs. Chapman, 79 Ga. 574, which holds that the jury should not be instructed that they are authorized to add interest in assessing damages, where punitive damages can be allowed, rules this case. In principle, the two cases are one and the same. To add interest to discretionary damages is to multiply uncertainty by certainty, the indefinite by the definite, a mixture of incongruous elements which subjects one of the parties to the burden, and gives the other the benefit of both kinds. If the time of realizing discretionary damages is to be considered (and doubtless the jury may consider it), it should be left as one of the terms of the general problem of damages, unfixed like all the rest of the terms. The rate of interest as established by law has no relevancy to the matter. Sums ascertainable only by the enlightened conscience of impartial jurors do not bear interest before 'verdict, either as interest or as damages, with or without discretionary allowance-by the jury.

2. The cars which hurt the boy were being switched, in the heart of the city, from the premises of one railroad company to those of another. They were running backwa’rds. The boy was passing along a street which divided the premises of the one company from those of the other, and which crossed eight parallel tracks. He was upon the sidewalk. His diligence in looking out for danger was and is a main point in the merits of the litigation. The court charged (24th ground of the motion) that “ ordinary diligence is that degree of care and attention which ordinarily reasonable and prudent persons would use under the same or similar circumstances. If the plaintiff was a child of tende'r years, it would be that degree of care and attention which a child of average powers and capacity, of the same age, would use under the same or similar circumstances.” . The objections to this charge, as indicated in the motion, are that the court should have used “men” instead of “ persons,” and that it was otherwise illegal. We do not go' back to the reported eases to see whether the care of “ ordinarily reasonable and prudent persons ”, is equivalent to. the care of “every prudent person,” but we suggest that''"' the standard of ordinary care, under our law, is the care of every prudent man, and not of the average or ordinary prudent man or person. In Beach on Contributory Negligence, §9, p. 23, mention is made of the ideal average prudent man, whose conduct theoretically is a constant, but we prefer to look for a standard to the real man, the prudent man, and to exclude the average altogether from the test. "When the class prudent has been reached, every individual of the class ought to be considered prudent, and there is no occasion to invent an average ideal man to represent the class. “Av prurient man foreseeth the evil and hideth himself.” I have examined the cases cited by Mr. Beach with reference to averaging the class prudent, except Walsh vs. Oregon R. R., 10 Oregon, 250, and in only one of them, Coates vs. Canaan, 51 Vt. 138, do I find average treated directly as an element in defining ordinary care.

But conceding that average may serve as a standard in adults, it will not follow that a like standard should have recognition as to children Could we assume an ideal constant as to the former, who that knows how precocious are some children and how backward are others, would carry the assumption down to childhood and apply it to children ?/Capacity (which includes personal experience as weíl as natural gifts) is the main thing. Age is of no significance except as a mark or sign of capacity. Some of the decisions mention age. only, but most of them couple capacity with it. As specimens, see Lynch vs. Nurdin, 1 Ad. & El., N. S. 29; Railroad Company vs. Gladman, 15 Wall. 401; Railroad Company vs. Stout, 17 Ib. 657; Munn vs. Reed, 4 Allen, 431; Railway Company vs. Crenshaw, 65 Alabama 566; Byrne vs. Railroad Company, 83 N. Y. 620; Plumley vs. Birch, 124 Mass. 57; Dowd vs. Chicopee, 116 Mass. 93; Lynch vs. Smith, 104 Mass. 52. The study of these and other like liases will lead to two conclusions : first, that no court can hold that childhood and manhood are bound to observe the same degree of diligence ; secondly, that while the name ordinary care is frequently applied to the diligence exacted by law of a child, there is little propriety in doing so ; due care is always the better and more accurate description. Certainly extraordinary care, in any proper sense of the term, can never be exacted of young children, and slight diligence would often be due care on their part, when in adults it would be gross negligence. The comparative degrees, extraordinary, ordinary and slight, it seems to us, cannot be fitly applied to children in reference to measures to be observed by them for their own security. If such an application was suggested by Vickers vs. Atlanta & West Point Railroad, 64 Ga. 306, it was an inadvertence, not in what was said but in what was implied. Due care on the part of this boy might fall far short of that of a prudent man, and yet exceed that of average boys of his own age. According to the evidence as to his standing at school, he was much above the average of his class.

3. As to the charge of the court touching negligence as matter of law, the application of the statute and of the city ordinance, the duty to ring the bell and hold trains in cheek so as to stop them at street crossings, the duty to comply with the ordinance as to the speed of trains not stopped, and as to keeping watchmen or flagmen at certain crossings, and as to responsibility of the railroad companies for inattention or negligence by such flagmen or watchmen, (in respect to all which, see 25th, 26th, 28th, 31st, 33d, 35th grounds of the mo-4 tion,) we have little fault'to find. On these subjects we merely refer to cases already adjudicated. Atlanta & West Point Railroad vs. Wyly, 65 Ga. 120; Central Railroad vs. Smith, 78 Ga. 694; Georgia Railroad vs. Carr, 73 Ga. 557; W. & A. R. R. vs. Meigs, 74 Ga. 857; Central Railroad vs. Russell, 75 Ga. 810. "We see no reason to doubt that a city which is the terminus of numerous connecting railways which interchange business within the corporate limits, may, by virtue of the usual grant of police powers found in municipal charters, not only regulate the speed of trains and moving cars, but prescribe regulations for maintaining the necessary flagmen or watchmen at 'street crossings, to secure the safety of the public, and that railroad companies, as matter of legal duty, must comply with such requirements and regulations, if they are reasonable. Of course, nothing unreasonable can lawfully be prescribed by virtue of general police powers, or if prescribed, can be enforced. The mixing up of flagmen or watchmen with the official police of the city is irregular, but seems to us not to vitiate an ordinance on the subject which railroad companies have virtually recognized and assented to, by employing and using as flagmen or watchmen, persons invested with general police powers, in addition to their functions as railroad employes.

We will add that the style of the charge touching the city ordinances, was too absoluto and unconditional, in treating them as law, without any reference to the jury of the question of fact as to whether there were such ordinances before them, and perhaps as to whether they were reasonable. The manner of dealing with the subject in the Central Railroad vs. Smith, supra, was more satisfactory, save that the ordinance involved in -.that case was not applicable to the facts.

4. On the measure of damages, see the 4th head-note. 'We think the court laid down substantially the correct rule in the 38th ground of the motion for a new trial, and in that part of the 40th ground preceding the instruction relating to the discretion of the jury in allowing interest. We regard what is complained of in the 36th ground of the motion as subject to just criticism, and we think it a sound direction to give, that this part of the charge be omitted on a future trial. A brief but excellent model of a charge upon the measure of damages, where the subject of the injury was a child, will be found in Davis vs. The Central Railroad, 60 Ga. 329.

The court erred in not granting a new trial, more especially upon the 40th ground of the motion. But we put the reversal of the judgment upon the whole case, and think its merits should be investigated anew, in the light of this opinion. As to grounds of the motion which we have not referred to, we regard them as free from substantial error.

Judgment reversed.