Atlanta & West Point Railroad v. Newton , 85 Ga. 517 ( 1890 )

Simmons, Justice.

Mrs. Newton sued the railroad company for damages for the homicide of her husband. The jury returned a verdict in her favor, and the railroad company made a motion for a new trial, which was overruled by the court, and defendant excepted.

1. The fifth and sixth grounds of the motion complain of the admission in evidence of certain sayings, after the homicide, of a person alleged to have been the engineer on the train. This testimony was objected to on the ground that it was not shown that the person making the statement was an employee of the defendant so that his sayings in and about the occurrence were competent evidence to bind it. The court submitted tbe question to the jury, for them to find whether the person who made the statement was tbe engineer or not. We do not think there was any error in admitting this testimony over the objection that was made to-it at the time of the trial. If it was a doubtful question whether the person who made the statement was the engineer of the defendant, or of some other person, the court was right in submitting that question to the jury. If the objection had been that the statement .of the engineer, made after the transaction had ended, was inadmissible, it would present a different question. We have read the evidence sent up in this record, and we deem it wholly immaterial whether this statement was made by the engineer of the defendant or not, or whether it was admissible or not, because the evidence clearly shows that the defendant was negligent in running its cars at a high rate of speed within the town of LaGfrange, and over the public crossings, and in not “ checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road” as required by section 708 of the code. It seems to us, from this evidence, that the only defence this company can make to this action is to show that the injury was done by the consent of .the husband; or that he could have avoided it by the exercise of ordinary care; or, in mitigation of damages, that he contributed to the injury.

2. The eighth ground of the motion complains that the court permitted a witness for the plaintiff to testify that “Mr. Newton’s character was that of a prudent and cautious man.” We think the court erred in admitting this evidence for the purpose for which it seems to have been used by the plaintiff' in the court below. One of the theories of the defendant was that the husband of the plaintiff could have avoided this injury by the exercise of ordinary care and diligence at the time he was injured. The question at issue before the jury, therefore, was as to his conduct at that particular time, not as to whether he was a “ prudent and cautious” man ordinarily or not. In the case of Morris v. Town of East Haven, 41 Conn. 254, the court said: “ Every case has, of course, its peculiar circumstances, and 'these must be taken into consideration in determining whether or not in that particular case reasonable care was exercised. Hence, what would be reasonable care in one case, might fall far short of it in another, and consequently the question whether it was exercised in one case would throw no light upon the question whether it was exercised in another. . . . It might as well be proved that a party was negligent on a certain occasion by showing that he had been negligent on other occasions where other parties had been injured.” In the case of Chase v. Railroad, 77 Me. 62, it was held: “ In an action for personal injuries received by a collision at a railroad crossing, evidence will not be received to show the general character and habits of the traveler for carefulness, as bearing upon the question of due care on his part, though his injuries occasioned death before he could tell how the accident happened, and no one saw him at the time of the collision.”

3. The ninth, tenth and eleventh grounds of the motion complain of the admissibility of the opinion of witnesses as to what the deceased could have made at certain occupations other than the one which he followed. One of the witnesses for the plaintiff' testified that he supposed the deceased “could have made $500.00 or $600.00 per year teaching school in a country school; as a mechanic, he could have made $500.00 or $600.00 per year; as a farmer he would be worth $400.00 or $500.00 per year, directing his own business ” ; and that “ he could have got. the same salary as teachers at "West Point, and they commanded salaries of from $700.00 to $1,000.00 per year.” Another witness testified that if the deceased “ had gone as a skilled mechanic to the public, or if he had directed his attention to teaching school, making money merchandising, keeping books or anything of that sort, or any sort of railroad work he was capable- of doing, he could have made $600.00.” The evidence in the record shows that the deceased had been a farmer ever since he had ax-rived at years of matux-ity, and that he had never followed any other vocation. We therefore think that the opinion of witnesses as to what he could have made in other vocations was inadmissible. It is proper, in a case like this, to prove the capacity of the .deceased, both mentally and physically, in order to show his ability to earn money in the vocation wliiehhe had selected and pursued through his whole life; but it is improper to allow witnesses to give their opinions as to the value of his sex-vices ixx occupations in which he had never engaged. In the case of Mansfield Coal & Coke Company v. McEnery, 36 Am. Dec. 664, Paxson, J., in discussiixg this question, said: “It was substituting for the ordinary, reasonable and probable incidents of life that which was speculative and unusual. ... A laborer toiling in the mines may by chance pick up a nugget of gold worth a fortune. Industry, thrift and sagacity have enabled some poor men to become millioxxaires. These cases, howevex-, ax-e exceptional. They are only the possibilities of life. Looking at mere possibilities, this unfox-tunate mule-driver, had he lived, might have become president of the United States. Yet to estimate the damages to his family upon the basis of a president’s salax-y would be worse than a burlesque upon theadministx-ation of the law. Such a principle, cax-x-ied to its logical conclusion might bankrupt any person, firm or corporation engaged in a business which involved the use of an element of danger.” We therefore think, under our statute, that when a man is killed, and a suit is brought to recover damages for his homicide, the amount of his earnings, or the value of his life to his family, should be based upon his probable earnings in the profession or vocation which he had selected, or was permanently pursuing at the time of his death. “ The measure of damages in an action by a wife for the homicide of her husband, . . . depends solely upon the value of the husband’s life. In estimating such value by age, habits, health, occupation, expectation of life, ability to labor and to furnish care and attention to the family, probable increase or diminution of that ability with lapse of time, rate of wages, etc., the necessary personal expenses of the husband should be deducted, and the balance, reduced to its present value, would be the value of the life.” Central R. R. v. Rouse, 77 Ga. 408.

Of course, if the deceased were a child, or a young man who had not as yet selected a profession or vocation, the rule would be somewhat different. That laid down in Davis v. Central R. R., 60 Ga. 329, and in W. & A. R. R. v. Young, 81 Ga. 397, might be proper.

4. The twelfth ground of the motion complains that the court erred in the -rule laid down to the jury for making their calculation upon the life tables, both in the original charge, and as corrected at the suggestion of plaintiff’s counsel. It seems to us that this exception is well-taken. The rule as laid down by the court at the suggestion of plaintiff’s counsel, was the rule to ascertain the gross amount of the value of the life; when the court should have gone further, and instructed the jury that, after' finding this gross amount, they should reduce it to its present value. The rule as given would show what amount the deceased would have earned, or been entitled to, if he had lived to the time the mortuary tables show his expectancy to be, and had waited for the money until he had earned it; but as the money recovered by the widow must be paid to her at once, this gross amount should be reduced to its present value. And for these reasons, and others which might be mentioned, we think the next ground (the thirteenth) of the motion, that the verdict is excessive, is well-founded. The amount of this verdict, if put at interest at 7 per cent., would give to this widow a sum greater per annum than any amount of earnings which her husband could have made if he had lived, even admitting the guessing and speculative opinions of the witnesses. The amount of the verdict, at 7 per cent, interest, would give her $672.00 per annum, and at the end of the twelve years, the expectancy of the life of her husband, she will have had this $672.00 annually for that whole length of time, and the amount of the verdict, $9,600.00 still in her hands. "Whereas, the jury should have given her a sum that would be exhausted at the end of twelve years by expending each year an amount equal to the net annual earnings of the husband. Such would be the full value of his life. This death occurred before the act of 1887, which forbids any deduction for the husband’s expenses. Of course the gross annual earnings will be the measure in cases falling under this act.

5. There was no error in refusing to give the charges set out in the fifteenth and sixteenth grounds of the motion, as they were not applicable to the facts of this case. Nor do we think thei’e was any error in charging, as complained of in the twenty-second ground of the motion, “that the rule generally is, everything else being equal, that positive testimony is rather to be believed than negative testimony.” The word “rather” seems to be in the wrong place in the sentence, but doubtless the jury understood the charge that positive testimony was to be believed rather than negative testimony.

The other grounds of the motion were not insisted upon in the argument here. Judgment reversed.