Crawford, Justice.
This was a suit brought by Allen Johnson to recover damages from the Atlanta and West Point Railroad Company for a permanent injury sustained by him in the loss of his left hand; also the expense of nursing, medicine, physician’s bill, loss of time, and the pain and suffering endured, which, as alleged, was caused by the agents of said company, and without fault on his part.
The jury, upon the trial of the case, gave him $5,250.00 damages. The defendant made a motion for a new trial which the court refused, and this refusal is alleged, as error.
1, 2. The two first grounds of the motion for a new trial are, that the court allowed proof of the plaintiff’s age, and capacity to labor, over defendant’s objection when the pleadings did not authorize such proof as to allow recovery for permanent injury; and because plaintiff and witness Wilson were allowed to testify that his [268]*268capacity to labor was diminished oné-half and one-third for the same reason, and also because it was not a legal mode of informing the jury of the measure of damages in that regard.
We neither appreciate the importance, nor recognize the legal necessity of averring in the declaration the plaintiff’s age, any more than we do that his size, weight) health, strength, or capacity for physical endurance should have been averred, before the proof thereof could have been received upon the issues necessarily raised by the averments which were made.
The testimony showing that the plaintiff’s capacity to labor was diminished was abundantly authorized under the pleadings, for it was distinctly alleged that he was employed as a train-hand on the way-freights of the said company, and that his fingers and a portion of his hand were so mashed as to necessitate amputation, and that his capacity to labor and earn money was thereby permanently diminished one-half.
The exception to the testimony of the plaintiff and Wilson would have been well taken, had they not both fully testified as to all - the material facts touching his physical condition, and personal incapacity for labor, before they stated how much less he could then do, than he could -have done before his injury was received. Havingj however, done this, their testimony as delivered was perfectly competent.
3. .The next error assigned is that the judge compelled the jury, by his charge, to give damages for each and every item mentioned in the first nine paragraphs thereof, if for either. After stating the nature of the suit, the judge instructed the jury how they were to measure the damages in the case, if they should-find any for the plaintiff, but in this same connection he warned' them that what he should say was not by way of charging them that they should find for him, nor by way of expressing or intimating, any opinion on the issue.'. His. instructions [269]*269then were, that if they should find for the plaintiff, that he would be entitled to recover the amount which the ■evidence showed that he had paid out for medicine; reasonable and just physician’s bill; for the time lost at such an amount per month as the evidence showed that he was making; for the permanent injury which they from the evidence believed that he had sustained; for the pain and suffering wuich he had endured by reason of the injury; and if the evidence submitted was definite and tangible that he was to suffer pain all his life, then he was entitled to something for that.
An examination of the full text of the charge, does ■not impress us as compelling the jury to give damages for ■each and every item mentioned in the first nine paragraphs if they were given for either. Each one was made to rest on its own merit, and on the proof by which it was sustained, and to this we can see no objection.
But we have had the gravest possible doubts upon the ■question of allowing damages to be recovered for the pain and suffering which the court charged the jury the plaintiff was entitled to if they believed that he was liable to suffer the same all through his life on account of this injury. The doubts arose first, because damages for his permanent injury had been already specified, which might be sufficient to have included in their minds this ■also, and second because it was so conjectural, so uncertain, and so difficult of ascertainment, that we had great misgivings as to whether it should have been allowed to enter as an additional element of damages into the case. But the judge guarded it so thoroughly, and placed the jury in such full possession of the nature of this ground of damages, that after much hesitation, and .in view of all the facts of the whole case, we have concluded that it should not be sent back for a third trial on this account.
Besides, it is to be remembered that no second action -can be maintained in such a case as this, no difference how much suffering or pain may be endured, and for that [270]*270reason such damages are held recoverable where the evidence renders it reasonably certain, that they will necessarily result from the injury, 1 Duer, 233-240; 26 N. J. Eq., 474; 44 Miss., 466; 18 N. Y., 534; 48 N. H., 541 ; 18 Ill., 416; Thompson on Car. Pass., 564.
4. The fourth ground of error is, that the judge treated the table in Reese’s Manual as absolutely correct and bind, ing on the jury as to the present value of plaintiff’s damages for the permanent injury, and in putting the ability to labor instead of the ability to earn moneyas the matter to be passed on by the jury.
How or where the court treated this table as stated does not appear to us.' On the contrary, he says: “ In order to aid you in coming to a conclusion on that point certain tables 1 ontained in Reese’s Manual are in evidence before you.” He then further instructed them that the calculation was based on an annuity, what an annuity was, and that the table was made to show what the cash value of one was according to the age of the owner; in other words he instructed the jury on that part of the evidence submitted, “ It is not improper to introduce in evidence standard lite-tables to show the expectancy of life of one of the age of the injured party, as a basis upon which to estimate the amount of damages he should recover.” Thompson on Car. Pass., 565; 26 Iowa, 124; 9 Wall., 513. And it is always the duty of the court to instruct the jury upon the evidence.
On the second branch of the exception taken in this same ground, wherein it is complained that the judge should have directed the jury to inquire Into the plaintiff’s capacity to earn money, instead of his ability to labor, we think that the two are so closely connected as to make but little difference in this case as it was declared upon, and as the testimony disclosed the complaint of the plaintiff. But ability to labor was the thing he was really deprived of by the loss of his hand, and was therefore put properly before the jury.
[271]*2715. That the court erred in confining the jury to the consideration of the plaintiff’s negligence “at the time’’ ■of the injury, as it may have worked damage to the defendant.
The right of the plaintiff to recover, turned upon what transpired when the injury was sustained; therefore it was immaterial whether he had been negligent at some other time or not, as that could in no wise affect the question so as to relieve the defendant, if it were liable at that time.
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Crawford, Justice.
This was a suit brought by Allen Johnson to recover damages from the Atlanta and West Point Railroad Company for a permanent injury sustained by him in the loss of his left hand; also the expense of nursing, medicine, physician’s bill, loss of time, and the pain and suffering endured, which, as alleged, was caused by the agents of said company, and without fault on his part.
The jury, upon the trial of the case, gave him $5,250.00 damages. The defendant made a motion for a new trial which the court refused, and this refusal is alleged, as error.
1, 2. The two first grounds of the motion for a new trial are, that the court allowed proof of the plaintiff’s age, and capacity to labor, over defendant’s objection when the pleadings did not authorize such proof as to allow recovery for permanent injury; and because plaintiff and witness Wilson were allowed to testify that his [268]*268capacity to labor was diminished oné-half and one-third for the same reason, and also because it was not a legal mode of informing the jury of the measure of damages in that regard.
We neither appreciate the importance, nor recognize the legal necessity of averring in the declaration the plaintiff’s age, any more than we do that his size, weight) health, strength, or capacity for physical endurance should have been averred, before the proof thereof could have been received upon the issues necessarily raised by the averments which were made.
The testimony showing that the plaintiff’s capacity to labor was diminished was abundantly authorized under the pleadings, for it was distinctly alleged that he was employed as a train-hand on the way-freights of the said company, and that his fingers and a portion of his hand were so mashed as to necessitate amputation, and that his capacity to labor and earn money was thereby permanently diminished one-half.
The exception to the testimony of the plaintiff and Wilson would have been well taken, had they not both fully testified as to all - the material facts touching his physical condition, and personal incapacity for labor, before they stated how much less he could then do, than he could -have done before his injury was received. Havingj however, done this, their testimony as delivered was perfectly competent.
3. .The next error assigned is that the judge compelled the jury, by his charge, to give damages for each and every item mentioned in the first nine paragraphs thereof, if for either. After stating the nature of the suit, the judge instructed the jury how they were to measure the damages in the case, if they should-find any for the plaintiff, but in this same connection he warned' them that what he should say was not by way of charging them that they should find for him, nor by way of expressing or intimating, any opinion on the issue.'. His. instructions [269]*269then were, that if they should find for the plaintiff, that he would be entitled to recover the amount which the ■evidence showed that he had paid out for medicine; reasonable and just physician’s bill; for the time lost at such an amount per month as the evidence showed that he was making; for the permanent injury which they from the evidence believed that he had sustained; for the pain and suffering wuich he had endured by reason of the injury; and if the evidence submitted was definite and tangible that he was to suffer pain all his life, then he was entitled to something for that.
An examination of the full text of the charge, does ■not impress us as compelling the jury to give damages for ■each and every item mentioned in the first nine paragraphs if they were given for either. Each one was made to rest on its own merit, and on the proof by which it was sustained, and to this we can see no objection.
But we have had the gravest possible doubts upon the ■question of allowing damages to be recovered for the pain and suffering which the court charged the jury the plaintiff was entitled to if they believed that he was liable to suffer the same all through his life on account of this injury. The doubts arose first, because damages for his permanent injury had been already specified, which might be sufficient to have included in their minds this ■also, and second because it was so conjectural, so uncertain, and so difficult of ascertainment, that we had great misgivings as to whether it should have been allowed to enter as an additional element of damages into the case. But the judge guarded it so thoroughly, and placed the jury in such full possession of the nature of this ground of damages, that after much hesitation, and .in view of all the facts of the whole case, we have concluded that it should not be sent back for a third trial on this account.
Besides, it is to be remembered that no second action -can be maintained in such a case as this, no difference how much suffering or pain may be endured, and for that [270]*270reason such damages are held recoverable where the evidence renders it reasonably certain, that they will necessarily result from the injury, 1 Duer, 233-240; 26 N. J. Eq., 474; 44 Miss., 466; 18 N. Y., 534; 48 N. H., 541 ; 18 Ill., 416; Thompson on Car. Pass., 564.
4. The fourth ground of error is, that the judge treated the table in Reese’s Manual as absolutely correct and bind, ing on the jury as to the present value of plaintiff’s damages for the permanent injury, and in putting the ability to labor instead of the ability to earn moneyas the matter to be passed on by the jury.
How or where the court treated this table as stated does not appear to us.' On the contrary, he says: “ In order to aid you in coming to a conclusion on that point certain tables 1 ontained in Reese’s Manual are in evidence before you.” He then further instructed them that the calculation was based on an annuity, what an annuity was, and that the table was made to show what the cash value of one was according to the age of the owner; in other words he instructed the jury on that part of the evidence submitted, “ It is not improper to introduce in evidence standard lite-tables to show the expectancy of life of one of the age of the injured party, as a basis upon which to estimate the amount of damages he should recover.” Thompson on Car. Pass., 565; 26 Iowa, 124; 9 Wall., 513. And it is always the duty of the court to instruct the jury upon the evidence.
On the second branch of the exception taken in this same ground, wherein it is complained that the judge should have directed the jury to inquire Into the plaintiff’s capacity to earn money, instead of his ability to labor, we think that the two are so closely connected as to make but little difference in this case as it was declared upon, and as the testimony disclosed the complaint of the plaintiff. But ability to labor was the thing he was really deprived of by the loss of his hand, and was therefore put properly before the jury.
[271]*2715. That the court erred in confining the jury to the consideration of the plaintiff’s negligence “at the time’’ ■of the injury, as it may have worked damage to the defendant.
The right of the plaintiff to recover, turned upon what transpired when the injury was sustained; therefore it was immaterial whether he had been negligent at some other time or not, as that could in no wise affect the question so as to relieve the defendant, if it were liable at that time.
6. Error is assigned on the following charge of the court in regard to the preponderance of positive over negative evidence: “ If a man, for instance, says a thing happened, swears it occurred, and another swears it did not occur, or that he did not see it happen; but if it is also deducible from his evidence that if it did happen he was obliged to have seen it — -that evidence, although negative in its character, would be equal to positive evidence. The jury in such case would be controlled by the greater weight of the whole testimony in reference to any given point or points, taking into consideration whether there is positive or negative testimony. Also, when a witness swears positively that he saw a thing and that it did happen, and another witness swears positively that it did not -happen, both the witnesses having equal opportunity, of seeing, it is positive evidence both ways. The' preference the law gives positive over negative is when one swears positively that a thing happened and another swears that he was present and did not see it or hear it (as the case may be), it being quite possible that it may have happened although the other may not have seen or heard it.”
This charge sets forth substantially the law. It might have been more accurately stated in that part of it where it is said that, “ if it were also deducible from his evidence that if it did happen he would have been obliged to have ‘seen it,” by saying that if the fhing sworn to had happened he would have been obliged to have seen it. Still [272]*272the difference is not sufficient to make any impression on the minds of the jurors
7. The last ground of error is that the verdict is contrary to law, against the weight of evidence, and excessive.
The verdict is not contrary to law, unless it is because it is excessive, and upon this ground this court is not permitted to substitute its estimate of the damages for that of the jury.
We appreciate the extreme difficulty which must attend honest and upright jurors in determining with accuracy and fairness the real damages sustained in these cases their sound sense and -deliberate judgment, based upon all the testimony, must finally determine how much should be allowed as compensation for the injuries suffered. They are to be aided in this delicate and responsible duty by the judge, who should caution and counsel them against excessive findings. In this case the judge warned the jury to take care to be reasonable and just, and not oppressive. They have said how much' the damages were,, and our law has declared that, “ the question of damages being one for the jury, the court should not interfere unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.”' Code, §2947.
Whilst we would not have estimated the damages so-great as here found, yet for wise purposes the law imposes-this duty upon the jury, and when they have spoken,, under the evidence and law, the court has no power to alter it unless for the reasons named in the statute; none appearing, the verdict must stand.
Judgment affirmed.