Central of Georgia Railway Co. v. Bond , 111 Ga. 13 ( 1900 )

Lumpkin, P. J.

Mrs. Frances B. Bond obtained a verdict against the railroad company for the homicide of her husband, and the defendant complains here of a judgment overruling its motion for a new trial.

1. Two witnesses for the plaintiff were allowed, over objection, to testify concerning their opinion as to what distance a railroad-train, running at a specified rate of speed, would “knock” a man if it struck him while he was upon the track. The objection was that these witnesses were no! shown to be experts or of sufficient knowledge to be able to say “ what a train could do,” and did not undertake to give the facts upon which their opinions were based. We think this testimony should have been excluded. It related to a matter purely of opinion, and the rule is well settled that, in such a case, a witness who is not an expert can not testify to his opinion without stating the facts upon which the same is founded. When he expresses his opinion in connection with the facts which he regards as justifying it, the jury are to judge of the value of it, and this they can not do in the absence of such facts. This familiar'rule is applicable in the present instance. No witness could say as matter of fact that a running train would by the impetus of a collision with a man on the track carry him so many feet. What would happen under such circumstances is certainly, so far as relates to the question of distance, purely a matter of opinion.

2. Complaint is also made that the court, over objection, permitted another witness to answer a specified question. The ground of the motion for anew trial relating to this matter does not, however, set forth what the answer was, and we are therefore unable to determine whether admitting it was or was not prejudicial to the defendant. W. U. Tel. Co. v. Michelson, 94 Ga. 436; Huie v. McDaniel, 105 Ga. 319; Reinhart v. Blackshear, Ibid. 799; Pearson v. Brown, Ibid. 802.

3. The plaintiff’s husband was killed in the town of Montezuma by a locomotive of the defendant company. For the purpose of showing that the train drawn by this locomotive was Tunning at an unlawful rate of speed, the plaintiff offered in evidence what purported to be a certified copy of an ordinance of that town which made it unlawful to “run engines and trains in any part of the town more than five miles an hour.” This document was objected to on the ground that “there was no seal of the town attached ” to the certificate which purported to be signed by the clerk of council. The objection was overruled. It ought to have been sustained. The paper offered in evidence was not admissible under section 5211 of the Civil •Code, for that section applies exclusively and in terms to the public officers of this State and the several counties thereof, and therefore can have no reference to certificates sighed by municipal officers. Indeed, exemplifications of the records of municipal corporations were not admissible at all until made so by the act of September 19, 1891 .(Acts- of 1890-91, vol. 1, p. 109), and it merely provides that they shall be admitted in ■evidence when certified under seal. The provisions of this act are now embraced in section 5216 of the Civil Code.

4. The above-mentioned document having been admitted in evidence, the defendant sought, in making out its defense, to prove .by its engineer 'in charge of the locomotive at the time of the homicide that he had never heard of any o dinance of the town of Montezuma regulating the speed ' trains within the corporate limits. We think this eviderh was properly excluded. It was insisted in the argument here that testimony upon this line, though not, admissible for the . purpose of excusing the engineer for a violation of the town ordinance, was competent for the purpose of showing that he was not grossly negligent in running the train at a prohibited rate of speed. We can not concur in this view. When a town or city passes an ordinance of this kind, all railroad companies concerned and their agents and servants are chargeable with constructive notice of it, and it can not become material, in any judicial investigation of the question whether or not the ordinance was duly observed upon a particular occasion, to inquire whether the company or its employees had actual notice of the existence of the same or not.

5. It is insisted that the court erred in charging the jury that the mere fact that the plaintiff and her husband may have been living in a state of separation at the time of the homicide would neither prevent a recovery nor have a bearing upon the measure of damages, in case the company was liable. There was no error in this-instruction. Section 3828 of the Civil Code gives to a widow a right of action for the wrongful homicide of her husband, and section 3829 prescribes the measure of damages to be “the full value of the life of the deceased.” This court, in Boswell v. Barnhart, 96 Ga. 522, held that under the act of October 27, 1887, from which the language just quoted was taken, “the plaintiff was entitled to recover the gross value of her husband’s life, without regard to whether she had previously received anything from him or not.”

6. One ground of the motion for a new trial is as follows: “Because the court erred in instructing the jury upon the law as to public road crossings and public street crossings, because it is claimed by defendant that the evidence clearly shows that injury did not occur at either of such crossings or within a hundred yards thereof:” As this ground entirely fails to set forth, either literally or in substance, the'language in which the instruction complained of was couched, this court can not, of course, undertake to say that injury rather than benefit resulted to the defend-int company from the giving of the charge which it contends was nauthorized by the evidence. In this connection see Eagle & Phenix Manufacturing Co. v. West, 61 Ga. 120; Central Railroad v. Freeman, 75 Ga. 332, 339; Atlanta Consolidated St. Ry. Co. v. Beauchamp, 93 Ga. 6-7; Kehoe v. Hanley, 95 Ga. 321; Southern Ry. Co. v. Dantzler, 99 Ga. 323; Goldin v. State, 104 Ga. 549.

7. The court charged the jury, in substance, that the failure of a railroad company to obey a valid municipal ordinance regulating the speed of trains within the corporate limits of a town or city was negligence per se. . There was no error in this instruction. Atlanta & West Point Railroad v. Wyly, 65 Ga. 120; Central Railroad v. Thompson, 76 Ga. 771; Tift v. Jones, 77 Ga. 182; Central Railroad v. Smith, 78 Ga. 694, 697; W. & A. R. R. Co. v. Young, 81 Ga. 397, 412; City of Columbus v. Ogletree, 96 Ga. 178-9. Counsel for the plaintiff in error relied on the decision of this court in W. &. A. R. R. v. King, 70 Ga. 261, in which a contrary doctrine was announced. We have only to say that as the decision pronounced in the case in the 65 Ga., above cited, is older in date and has never been formally reviewed and overruled, it is to be regarded as controlling upon this question. As will have been seen, that case has several times been cited approvingly, whilst that in the 70 Ga. has never, so far as we have been able to ascertain, been followed or even referred to in subsequent adjudications upon the subject.

8. In still another ground of the motion, the defendant complains in general terms that “the court erred ” in giving a certain charge therein set forth; but no special reason is assigned why this instruction worked injury to the company, nor is any attempt made in the motion to point out any alleged inaccuracy in the charge or to criticise the same as being inapt and inappropriate. Viewed in the abstract, it appears to be wholly unobjectionable, for the correctness of the familiar propositions of law therein announced can not be seriously .questioned. That this is true counsel for the plaintiff in error concedes, but in his brief insists that the evidence did not warrant such an instruction. We can not, of course, deal with the point thus sought to be raised. It should have been expressly made in the motion for a new' trial, if reliance upon it was contemplated, in order that it might be urged before and passed upon by the court below. Anderson v. Southern Ry. Co., 107 Ga. 500 ; Mayor of Americus v. Eldridge, 108 Ga. 778; Clay v. Smith, Id. 189; Dawkins v. Willbanks, Id. 804; Newman v. Day, Id. 813; Central of Ga. Ry. Co. v. Felton, 110 Ga.; Cook v. Kilgo, 111 Ga. post.

9. The court was requested in writing to give in charge to the jury an instruction in substantially the same language as that used by this court in the fourth headnote to the case of Air-Line Ry. Co. v. Gravitt, 93 Ga. 370. In view of the evidence relied on by the defendant, this.instruction was applicable in the present case; and as it was not covered by the general charge to the jury, the refusal to give it was erroneous.

Judgment reversed.

All concurring, except Fish, J., absent.