Lumpkin, J.
1. It was contended that the judge erred in allowing counsel for the plaintiff to write off any portion of the verdict without the consent and over the objection of counsel for the defendant, and in not granting the motion for new trial. The principle underlying the question here raised has been considered in several decisions of this court. Where damages are of a character in the fixing of the amount of which the discretion of the jury is involved, as in cases of general damages, oí damages for pain and suffering, or the like, the determination of the amount is peculiarly for the jury. If the finding is so excessive as to justify the inference of gross mistake or undue bias, the proper mode of correction on the part of the presiding [76]*76judge is to grant a new trial. Civil Code, § 3803. He can not substitute his discretion .or finding of a proper amount for that of the. jury, and grant a new trial unless the plaintiff will write down the verdict to an amount with which he is satisfied or which he would have found had he been a jury. If bias or prejudice on the part of the jury infected their finding, decreasing the amount would not wholly eradicate the infection. The same bias or prejudice which prompted the finding of an excessive verdict may have had its effect in producing the finding in favor of the plaintiff at all.- Therefore in such cases the presiding judge should grant a new trial unconditionally, and not refuse it on condition that some of the verdict be written off, or require the plaintiff to write off a portion of it, and thereupon on that basis refuse a new trial. In cases of the character above indicated there is no exact measure by which the excessive portion of the verdict can be segregated from that which is proper, and written off from it.- But there is another class of cases where this can be done, and where there is no necessity for the granting of a new trial in order to correct a finding for an erroneous amount which can be accurately measured and deducted from the verdict. As early as the case of Griffin v. Witherspoon, 8 Ga. 113, it was said: “Where the jury found a verdict for a greater amount of damages than was claimed in -the plaintiff’s declaration, and a motion for a new trial having been made on that ground, the plaintiff entered a remittitur on the record for the excess: Held, that the plaintiff had a right to enter such remittitur, and that a new trial on that ground ought to have been refused.” The case there involved was an action for deceit, with damages laid at $1,000. The jury found a verdict for the plaintiff for a thousand dollars, with interest from a specified date. The defendant moved for a new trial on the ground that the verdict was illegal as to the interest. The plaintiff entered a remittitur for such interest. The court notwithstanding granted a new trial on the ground stated. The plaintiff excepted, and the judgment was reversed. There the measure of the excess, and therefore of the error in the verdict, could be determined; and this court held that it was the right of the plaintiff to cure the error by writing off such excess and to have the verdict stand. In Macon R. Co. v. Stewart, 125 Ga. 88 (7), (54 S. E. 197), in a [77]*77suit for damages against a railroad company for the killing of stock, the jury found a certain amount as interest and also an amount for attornej^’s fees. This court said: “The plaintiff having voluntarily written off the amount in the verdict found as interest, the judgment will be affirmed, with direction that the amount found as attorney’s fees be also written off, and the judgment in other respects stand affirmed.” In Seaboard Air-Line Ry. v. Randolph, 129 Ga. 796 (59 S. E. 1110), the subject was considered and numerous authorities cited. In that case the suit was by a widow for the homicide of her husband. The jury found for the plaintiff an amount somewhat over $9,000. The presiding judge expressed his disapproval of the verdict as being for too- large a sum, and stated that he would not approve' a verdict for more than $6,500. He' then allowed counsel for plaintiff to write the verdict down to that amount, and refused the new trial. This was held to be error. A similar ruling was made in Central of Ga. Ry. Co. v. Perkerson, 112 Ga. 923 (38 S. E. 365, 53 L. R. A. 210), where the suit was also by a widow for the homicide of her husband. The distinction between the two-classes of cases, in one of which there is no accurate mode by which the error can be cured -and in the other of which there is-such a mode, will be readily apparent on consideration. In the-case of Seaboard Air-Line Ry. v. Randolph, supra, it was said in the opinion (p. 800) : “In cases where, from the application of the law to the evidence, an excess in the verdict can be accurately ascertained and the verdict corrected by plaintiff’s writing it off, a different rule might apply.” It is a general rule that reversals will not be granted for harmless error. The case now before us was not one in which the jury could add interest to the damages found by them. Western & A. R. Co. v. Young, 81 Ga. 397 (7 S. E. 912, 12 Am. St. R. 320). The presiding judge -therefore erred in charging the jury that they might include in their verdict interest on the amount which they would otherwise find, at the rate of seven per cent, per annum from the time of the injury. If the jury added interest in making up their verdict, it is quite clear that, following the rule laid down by the court, the instruction complained of could not have induced them to add more than 7 per cent, upon what they would have otherwise found, and that the utmost injury which could [78]*78have accrued to the defendant from this charge was an inclusion of 'such amount of interest in the verdict.. We do not know of •any law which prohibits a plaintiff from writing off a part of his verdict. The question which has arisen is rather as to what effect such writing off shall have upon the presiding judge in passing upon a motion for new trial. Here the utmost injury which could have arisen from the error in the charge can be accurately determined. Counsel for plaintiff undertook voluntarily to write off the highest amount which the jury could have awarded as interest from the date of the injury to the date of the verdict. The judge recognized the error of his charge, and that the proper correction would require the writing off of all the interest which the jury could have found. He recited in his order that this had been done. Hpon a careful calculation it appears that the amount written off was slightly less than it was possible for the jury to have found as interest. The amount which shofild have been written off was $207.40. Thus there is an err^r in calculation of $17.11. Counsel for plaintiff, both in their argument and brief, urged that, having sought to correct the error, if this court should determine that there was only a mistake in calculation, so that not quite sufficient has been written off from the verdict, this should be corrected by proper direction of the court, and should not result in a new trial. We think that, under the circumstances of this case, as above stated, this should be done.
Free access — add to your briefcase to read the full text and ask questions with AI
Lumpkin, J.
1. It was contended that the judge erred in allowing counsel for the plaintiff to write off any portion of the verdict without the consent and over the objection of counsel for the defendant, and in not granting the motion for new trial. The principle underlying the question here raised has been considered in several decisions of this court. Where damages are of a character in the fixing of the amount of which the discretion of the jury is involved, as in cases of general damages, oí damages for pain and suffering, or the like, the determination of the amount is peculiarly for the jury. If the finding is so excessive as to justify the inference of gross mistake or undue bias, the proper mode of correction on the part of the presiding [76]*76judge is to grant a new trial. Civil Code, § 3803. He can not substitute his discretion .or finding of a proper amount for that of the. jury, and grant a new trial unless the plaintiff will write down the verdict to an amount with which he is satisfied or which he would have found had he been a jury. If bias or prejudice on the part of the jury infected their finding, decreasing the amount would not wholly eradicate the infection. The same bias or prejudice which prompted the finding of an excessive verdict may have had its effect in producing the finding in favor of the plaintiff at all.- Therefore in such cases the presiding judge should grant a new trial unconditionally, and not refuse it on condition that some of the verdict be written off, or require the plaintiff to write off a portion of it, and thereupon on that basis refuse a new trial. In cases of the character above indicated there is no exact measure by which the excessive portion of the verdict can be segregated from that which is proper, and written off from it.- But there is another class of cases where this can be done, and where there is no necessity for the granting of a new trial in order to correct a finding for an erroneous amount which can be accurately measured and deducted from the verdict. As early as the case of Griffin v. Witherspoon, 8 Ga. 113, it was said: “Where the jury found a verdict for a greater amount of damages than was claimed in -the plaintiff’s declaration, and a motion for a new trial having been made on that ground, the plaintiff entered a remittitur on the record for the excess: Held, that the plaintiff had a right to enter such remittitur, and that a new trial on that ground ought to have been refused.” The case there involved was an action for deceit, with damages laid at $1,000. The jury found a verdict for the plaintiff for a thousand dollars, with interest from a specified date. The defendant moved for a new trial on the ground that the verdict was illegal as to the interest. The plaintiff entered a remittitur for such interest. The court notwithstanding granted a new trial on the ground stated. The plaintiff excepted, and the judgment was reversed. There the measure of the excess, and therefore of the error in the verdict, could be determined; and this court held that it was the right of the plaintiff to cure the error by writing off such excess and to have the verdict stand. In Macon R. Co. v. Stewart, 125 Ga. 88 (7), (54 S. E. 197), in a [77]*77suit for damages against a railroad company for the killing of stock, the jury found a certain amount as interest and also an amount for attornej^’s fees. This court said: “The plaintiff having voluntarily written off the amount in the verdict found as interest, the judgment will be affirmed, with direction that the amount found as attorney’s fees be also written off, and the judgment in other respects stand affirmed.” In Seaboard Air-Line Ry. v. Randolph, 129 Ga. 796 (59 S. E. 1110), the subject was considered and numerous authorities cited. In that case the suit was by a widow for the homicide of her husband. The jury found for the plaintiff an amount somewhat over $9,000. The presiding judge expressed his disapproval of the verdict as being for too- large a sum, and stated that he would not approve' a verdict for more than $6,500. He' then allowed counsel for plaintiff to write the verdict down to that amount, and refused the new trial. This was held to be error. A similar ruling was made in Central of Ga. Ry. Co. v. Perkerson, 112 Ga. 923 (38 S. E. 365, 53 L. R. A. 210), where the suit was also by a widow for the homicide of her husband. The distinction between the two-classes of cases, in one of which there is no accurate mode by which the error can be cured -and in the other of which there is-such a mode, will be readily apparent on consideration. In the-case of Seaboard Air-Line Ry. v. Randolph, supra, it was said in the opinion (p. 800) : “In cases where, from the application of the law to the evidence, an excess in the verdict can be accurately ascertained and the verdict corrected by plaintiff’s writing it off, a different rule might apply.” It is a general rule that reversals will not be granted for harmless error. The case now before us was not one in which the jury could add interest to the damages found by them. Western & A. R. Co. v. Young, 81 Ga. 397 (7 S. E. 912, 12 Am. St. R. 320). The presiding judge -therefore erred in charging the jury that they might include in their verdict interest on the amount which they would otherwise find, at the rate of seven per cent, per annum from the time of the injury. If the jury added interest in making up their verdict, it is quite clear that, following the rule laid down by the court, the instruction complained of could not have induced them to add more than 7 per cent, upon what they would have otherwise found, and that the utmost injury which could [78]*78have accrued to the defendant from this charge was an inclusion of 'such amount of interest in the verdict.. We do not know of •any law which prohibits a plaintiff from writing off a part of his verdict. The question which has arisen is rather as to what effect such writing off shall have upon the presiding judge in passing upon a motion for new trial. Here the utmost injury which could have arisen from the error in the charge can be accurately determined. Counsel for plaintiff undertook voluntarily to write off the highest amount which the jury could have awarded as interest from the date of the injury to the date of the verdict. The judge recognized the error of his charge, and that the proper correction would require the writing off of all the interest which the jury could have found. He recited in his order that this had been done. Hpon a careful calculation it appears that the amount written off was slightly less than it was possible for the jury to have found as interest. The amount which shofild have been written off was $207.40. Thus there is an err^r in calculation of $17.11. Counsel for plaintiff, both in their argument and brief, urged that, having sought to correct the error, if this court should determine that there was only a mistake in calculation, so that not quite sufficient has been written off from the verdict, this should be corrected by proper direction of the court, and should not result in a new trial. We think that, under the circumstances of this case, as above stated, this should be done. We accordingly direct that the correct amount to cover possible interest found by the jury, namely, $207.40, instead of $190.29, should be written off from the verdict and judgment, and if the plaintiff or his counsel shall do this within 30 days from the filing of the remittitur from this court in the office of' the clerk of the superior court, the motion for new'trial, as to this ground, will be overruled, and the verdict allowed to stand. If, within the time specified, the defendant in error or his counsel should fail to file with the clerk of the superior court a remission of the excess above stated, so as to write off from the verdict and judgment $207.40 instead of $190.29, a new trial will be granted. See Civil Code, § 5498.
For eases in which erroneous findings have been cured by. writing off certain amounts which were definitely ascertainable, sometimes in damages and sometimes otherwise, see the .following: [79]*79Teasley v. Bradley, 120 Ga. 373 (47 S. E. 925); Brinson v. Reid, 107 Ga. 250 (33 S. E. 31); Buice v. McCrary, 94 Ga. 418 (20 S. E. 632); Rockdale Paper Mills v. Stevens, 65 Ga. 380; Hendry v. Hurst, 22 Ga. 312; Steadman v. Simmons, 39 Ga. 591; Mayor &c. of Brunswick v. Tucker, 103 Ga. 233 (29 S. E. 701); Sparks v. Ætna Ins. Co., 62 Ga. 198; Giles v. Spinks, 64 Ga. 205.
2. It is contended that, the verdict is contrary to the evidence. We are not called upon to decide what we might have done had we been on the jury; but we have before us the verdict which the jury found, and its approval by the trial judge (subject to the correction above referred to), and we can not say that there was not sufficient evidence to warrant the jury in such finding. There were two principal points of contest: (1) Whether there was any evidence from vhich the jury could find that the defendant was negligent; and (2) whether the plaintiff was violating the rules of the company at the time when he was injured, and was thereby debarred from recovery. In view of the plaintiff’s testimony as to the nature of his employment, the sudden call upon him by the company to do other work than that in which he was customarily engaged,, the character, location, and circumstances surrounding the spike or nail by which he was injured, his testimony as to the duty which called him to go forward while engaged in connection with the running of the train, and the reasons therefor, and the manner in which the car was loaded, we can not say that the jury were not authorized, in view of the facts before them and such reasonable deductions as they might make therefrom, to find that the defendant was negligent, and that the plaintiff was not guilty of such violation of duty as precluded him from recovering. In regard to the claim that he was violating the rules of the company, it did not appear that the particular rule mainly relied upon had ever been promulgated to him. He stated, that, some eight or ten years prior to the trial, he had been in the employment' of the railroad company and had been given a rule-book similar in general appearance to the one which was exhibited to him in the trial, but he could mot say whether they were the same, and that he had kept it for a short time; that it had then been taken from him and some changes made in it, and it had never been returned to him; [80]*80and that he did not know anything about the rule in question; though he did also say that he might have heard of it and might have forgotten it. No evidence was introduced to show that in fact-the rule in question was ever delivered to him, or that information concerning it was ever given him.
According to the plaintiffs evidence, he was injured while in the discharge of his duties in connection with the operation of the train while running; he was without fault; and the nail or spike, which ought not to have been there, caused the injury. From the situation, shape, and fixed condition of the spike, the jury had a right to draw inferences as to how it came to be there or in that position, whether from the jostling of the car itself or from carelessness in loading, and failure to properly inspect, or whether it was there without negligence on the part of the defendant or its employees. These were .matters for legitimate inference by the jury, and we can not declare as matter of law that they decided wrongly. The Civil Code, § 5157, declares, that, “In arriving at a verdict, the jury from facts proven, and sometimes from the absence of counter-evidence, may infer the existence of other facts reasonably and logically consequent on those proved.” It would be useless to. cite and discuss decisions of the courts of other States, where the general rule governing the liability of a master to an injured servant applies to railway employees. In this State the code contains the distinct declaration that “if the person injured is himself an employee of the company, and the damage was caused by another employee, and. without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery/ Civil Code, § 2323. Take, for example, Fuller v. Ann Arbor R. Co., 141 Mich. 66 (104 N. W. 414). A ear was being repaired, not operated. The repairer threw a wrench upon it, which struck a torpedo and exploded it. ' The court said: “It [the torpedo] may have been placed there by a fellow-servant, or by a trespasser only a short time before- plaintiffs injury. If so, it is clear that no liability would be imposed upon defendant.” In Georgia, if it had been negligently placed there by a fellow-servant while working for the company, that fact would not have relieved the company. In Michigan it has been held that & railroad employee can not recover on account of an injury re-[81]*81suiting from the negligence of a fellow-servant. Enright v. Toledo R. Co., 93 Mich. 409 (53 N. W. 536). It has been declared in many cases in this State, where an employee of a railroad company sued for a personal injury, that the company or its other employees must have been at fault, and the injured employee without fault; but that a prima facie case was made out if either of those things was shown, a presumption of the other thereupon arising. If it should be said that, upon proof that the plaintiff was without fault, he stands like a passenger, or a third party similarly situated, other than an employee, and the doctrine of presumption of negligence only arises in favor of such a person where the injury is caused by the “running” of the locomotives, or cars, or other machinery of such company, or where there is some wrongful act of an employee of the company which was the immediate cause of the damages, the expression “by the running of the locomotives, or ears, will not be given a narrow and contracted meaning, but will be reasonably construed in the light of the legislative purpose and intention as evidenced by the entire statute. To illustrate: A train pulls up to a station and stops. A passenger in alighting is injured because the step of the car is broken or wanting. Technically speaking, the train is not “running,” in the sense of being in actual motion, at the instant when the passenger is alighting. But he is injured by the running of the train in the sense that it is being operated, and that, as a part of such operation, the company must allow passengers proper opportunities for alighting. Would it be contended that the presumption declared by the Civil Code, § 3321, would not arise in favor of a passenger in such a case? Or suppo.se a conductor or brakeman, in the discharge of his duties, calls a station, the train stops in the dark, a passenger endeavors to leave it, and steps into a gully underneath where the platform stands, would it be said that no presumption arose because the train was not in motion — not “running” in that sense, or because no employee of the company pushed or threw him off? Or again, suppose a passenger, walking along the aisle of a car, or in sitting down, should be wounded by a long spike projecting from the seat, or from the floor, or should be caused to trip and fall because of a hole in the floor, or of a piece of wood or iron projecting from it, would any one contend that no presumption arose in the passen[82]*82ger’s favor, because tbe car was not at tbe moment in motion, or because no employee exercised any direct force upon him at the instant of the injury? If it should be conceded, therefore, that upon proof by an injured employee on a train that he was free from fault, he stands in the position of a passenger relatively to the presumption of negligence against the company, we can not admit that, if a passenger had had the right to be and walk where this employee was, no presumption would have arisen in his favor when injured by a spike firmly fixed in a dangerous position in the load of the car. The cases of Lee v. Central of Ga. R. Co., 86 Ga. 232 (12 S. E. 307), East Tenn. etc. Ry. Co. v. Reynolds, 93 Ga. 570 (20 S. E. 70), Rome R. Co. v. Thompson, 101 Ga. 26 (28 S. E. 429), and Savannah etc. Ry. Co. v. Flaherty, 110 Ga. 335 (35 S. E. 677), do not conflict with this position. In the Lee case in 86 Ga., a brakeman stepped on a pile of ashes and dross lying beside the track, arising from raking out the furnaces of engines, and his foot turned on a clinker of unusual size. In cleaning out the furnaces of engines, there was no negligence in withdrawing clinkers, arid diligence did not require absolute freedom from clinkers along the track. Nor was there any reason shown why the plaintiff stepped on the clinker. In the case of the East Tennessee Railway Company in 93 Ga., a conductor walked along the track to flag an approaching train, and slipped on a cross-tie on the edge of which was a small bit of decayed sap. It was held that the purpose of cross-ties was not to make a way for employees to walk upon, and that there was no emergency, or other fact which showed negligence on the part of the company relatively to the plaintiff. In the Rome Railroad Company case in 101 Ga., it is stated that the person killed was not an employee of the defendant, and was injured at the platform of a railroad scale. In Flaherty’s case, 110 Ga., the injury arose from a sloping and greasy place in a depot platform, on which a person slipped. Some of the reasoning there goes quite far, but it differs from this case. It was said there, “Nothing was running.” Here the train was running, and the plaintiff was engaged as conductor in taking part in causing it to run properly, so as not to cause an accident to it. As to the expression “the running” of cars, in section 2321 of the code, see Ga. Ry. & Elec. Co. v. Reeves, 123 Ga. 697, 705 (51 S. E. 610). In the Flaherty case [83]*83no reference was made to that of Central R. Co. v. Gleason & Harmon, 69 Ga. 200, 203, 72 Ga. 742.
In East Tennessee Ry. Co. v. Suddeth, 86 Ga. 388 (12 S. E. 682), wljere an employee was passing over a car loaded with ■ore, and a piece of the ore on which he stepped turned under his foot, it was said that “while the general rule is that the company must explain, where the fact of injury is proved and the plaintiff shows himself free from fault,” yet the plaintiffs own evidence in that case showed that there was no fault, but a mere accident. The case at bar differs from that one, in that the load of ore was a legitimate and proper thing to have on the car. Here the spike was a dangerous thing, and no part of the legitimate load. The principle which is there recognized applies here, but the plain.tiffs evidence did not in this case exculpate the defendant. If the jury believed that the dangerous spike or nail (a forty-penny, nail) was placed in this dangerous position in loading, then clearly they could, have found that there was negligence in the loading, or a want of proper inspection. 26 Cyc. 1124 (b). If they believed that perhaps the spike ox nail was not so placed during the process of loading, but was caused to rear up into & dangerous position by the jolting of the car in running, at some time after the loading, then the danger was caused by the “running” of the train in the most literal sense of the word. It is not the question whether some other possibility might be surmised. The question now under consideration is whether the jury could not lawfully have found as they did, and whether the presiding judge erred in approving their finding. If the case be considered relatively to the inferences which the jury might legitimately draw, or from the standpoint of presumption, the circumstances called for explanation from the defendant. None was forthcoming as to the diligence of the company or its other employees, and the verdict of the jury can not be said to be without evidence to support it.
Judgment affirmed, on condition.
All the Justices concur, except Atkinson, J., dissenting, and Holclen, J., disqualified.