Habéis, J.
It is impossible to loot through the record in this case, without indulging our sympathies with the widow, who [335]*335brings her suit against • the defendant for the pecuniary damages she has sustained by its alleged culpable neglect causing the death of her liusband, an industrious, sober mechanic, who could realize, annually, by his skill, twelve to fifteen hundred dollars.
No fault can be imputed to him who lost his life. Was there any such remissness or negligence on the part of the employees of the Georgia Eailroad, or the Company itself, as made it amenable by law in damages for the death of William M. Wright? A special jury of Eichmond county, after hearing much testimony on both sides, were unable to fix upon any negligence, or carelessness, or want of watchfulness, on the part of the defendant, and, consequently, found a general verdict for the defendant.
[1.] There was no motion by the plaintiff for a new trial. This precludes this Court from an expression of opinion upon the correctness of the verdict, and, under the long and uniform practice which has obtained, prevents the granting of a new trial upon the ground that the verdict is contrary to evidence. There is ample power residing in the Superior Courts to correct their errors, or those of a jury. They should be called upon to make them. It is to be presumed that they will correct them, when called on, and if not called on properly, we are bound to presume none existed. There is, moreover, a courtesy due by this tribunal to our brethren of the bench of the Superior Court, which we will, at all times, sedulously observe by refusing to decide upon what was not before them. By adhering to this practice, we avoid what would be a fruitful fount of irritation; and, to them, what would often be gross injustice.
Eeferring to the record, the testimony was full, as to the bad condition of the road. It appeared, however, from the statement of the superintendent, that it was beyond the power of will, and money, and skill, to put it in better condition. It was in the midst of the civil war. The ports of the South were under a rigid blockade. Supplies of [336]*336iron were not to be had. These facts were known to every man who entered a car. He had but to look before and around, to be impressed with the conviction, that his danger had increased, and was daily increasing, and that this state of things was remediless. The railroad company could not be blamed for a state of things it did not produce, and which it could not alter. Was responsility for damages to be unaffected by these circumstances? These matters, very probably, had much weight with the jury; but we are not called on to give any opinion as to their value.
[2.] If a new trial can, in this hard case, be accorded to plaintiff, it can only be for some material error in the rulings or charge of the judge.
Let us consider those complained of. Our brother Hook is said to have erred in refusing to charge the jury, “That when running the train on a curve where the iron was worn, it was the duty of the conductor to slacken the train ;” and, further, “ That if the axle of the ear was two inches too short, and that the attention of the company was called to it, that the jury might presume therefrom that it was the cause of the injury.”
These requests were properly refused, for they were unauthorized by the testimony. There is nothing to show that the train, on this occasion, when running over- the curve where the accident occurred, was moving at any other than its common, or usual, speed over curves. The request carries with it the idea, that the train ran over curves with the same speed with which it passed over the straightest and smoothest stretches of the road. The testimony, fairly considered, authorized no such idea, and, therefore, the Court did right, for that reason, in declining to give it.
The second request was still more objectionable. It was not “as fact” in testimony, that the axle of the car which ran off and caused the death of "Wright, was two inches too short; it was not a fact in evidence, that any one had told the company, or its superintendent, or conductor, or any employee having charge of the train, that it was too [337]*337short, or two inches too short. Had these, as facts, been proven, then would the request assume a different aspect.
Two witnesses swore, that, going up with the train the afternoon of the accident to Mr. Wright, the breakman said to them, that the axle of the car which had run off, was two inches too short, and that he had told them so. This same breakman, when sworn before the jury, denied that he had ever said so, and assigned a very satisfactory reason why he must have been misapprehended, or misstated, — that, had there been any thing wrong about the car, he would never, himself, have gone on it.
[3.] The sayings of the breakman should not have gone to the jury, until it had been shown that it was within his peculiar province to watch over and superintend the condition of the cars constituting the train, and having such a control as to direct which should go and which not. Beyond the scope of his agency, the principal cannot be bound by his sayings and acts. This should be looked to with care. It applies, with full force, in the ordinary transactions of, life; and, as corporate bodies, especially railroad companies, have, daily, their hundreds of employees, in various service, with divisions of labor and duty, simple justice requires that these companies shall not be liable for damage, upon the loose or casual sayings of every person who may be in their employment. If this was not already law, public policy, in fostering combined capital adding so much to the wealth and advancement of a people, demands that the same protection to these artificial persons as is constantly accorded to individuals, should be fairly given.
[4.] But, suppose that the sayings of this breakman had been legally admissible, the form of the request to charge is highly objectionable, as it virtually withdraws the question of negligence or culpability from the jury. The jury, alone, have the right of the determination of this question. It is a complex and difficult matter, often, to decide; as many considerations enter into it, and rarely any fact, of itself, is sufficient to establish it clearly. If it had been a [338]*338fact proved, that the axle was too short, still, beyond that was necessary the testimony of some expert, or persons familiar with the running of cars, to show that that was the cause of the accident: certainly the Judge has no right to determine what constitutes negligence.
"We have made these remarks, with the view of calling the attention of the bench and bar to the necessity of keeping the provinces of the Judge and jury as distinct as possible.
Counsel for parties certainly have the right, which we would not abridge, to have a principle of law springing from the testimony in the 'case, and pertinent to the issue tried, given by the Court; but they have no right to single out and specify a fact or two in testimony, and to ask the Judge to charge the jury that if they are satisfied such and such facts exist, 01 have been proven to their satisfaction, that, then, they should find so and so. It is difficult, perhaps impossible, to fix any rule' which will cover this matter.
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Habéis, J.
It is impossible to loot through the record in this case, without indulging our sympathies with the widow, who [335]*335brings her suit against • the defendant for the pecuniary damages she has sustained by its alleged culpable neglect causing the death of her liusband, an industrious, sober mechanic, who could realize, annually, by his skill, twelve to fifteen hundred dollars.
No fault can be imputed to him who lost his life. Was there any such remissness or negligence on the part of the employees of the Georgia Eailroad, or the Company itself, as made it amenable by law in damages for the death of William M. Wright? A special jury of Eichmond county, after hearing much testimony on both sides, were unable to fix upon any negligence, or carelessness, or want of watchfulness, on the part of the defendant, and, consequently, found a general verdict for the defendant.
[1.] There was no motion by the plaintiff for a new trial. This precludes this Court from an expression of opinion upon the correctness of the verdict, and, under the long and uniform practice which has obtained, prevents the granting of a new trial upon the ground that the verdict is contrary to evidence. There is ample power residing in the Superior Courts to correct their errors, or those of a jury. They should be called upon to make them. It is to be presumed that they will correct them, when called on, and if not called on properly, we are bound to presume none existed. There is, moreover, a courtesy due by this tribunal to our brethren of the bench of the Superior Court, which we will, at all times, sedulously observe by refusing to decide upon what was not before them. By adhering to this practice, we avoid what would be a fruitful fount of irritation; and, to them, what would often be gross injustice.
Eeferring to the record, the testimony was full, as to the bad condition of the road. It appeared, however, from the statement of the superintendent, that it was beyond the power of will, and money, and skill, to put it in better condition. It was in the midst of the civil war. The ports of the South were under a rigid blockade. Supplies of [336]*336iron were not to be had. These facts were known to every man who entered a car. He had but to look before and around, to be impressed with the conviction, that his danger had increased, and was daily increasing, and that this state of things was remediless. The railroad company could not be blamed for a state of things it did not produce, and which it could not alter. Was responsility for damages to be unaffected by these circumstances? These matters, very probably, had much weight with the jury; but we are not called on to give any opinion as to their value.
[2.] If a new trial can, in this hard case, be accorded to plaintiff, it can only be for some material error in the rulings or charge of the judge.
Let us consider those complained of. Our brother Hook is said to have erred in refusing to charge the jury, “That when running the train on a curve where the iron was worn, it was the duty of the conductor to slacken the train ;” and, further, “ That if the axle of the ear was two inches too short, and that the attention of the company was called to it, that the jury might presume therefrom that it was the cause of the injury.”
These requests were properly refused, for they were unauthorized by the testimony. There is nothing to show that the train, on this occasion, when running over- the curve where the accident occurred, was moving at any other than its common, or usual, speed over curves. The request carries with it the idea, that the train ran over curves with the same speed with which it passed over the straightest and smoothest stretches of the road. The testimony, fairly considered, authorized no such idea, and, therefore, the Court did right, for that reason, in declining to give it.
The second request was still more objectionable. It was not “as fact” in testimony, that the axle of the car which ran off and caused the death of "Wright, was two inches too short; it was not a fact in evidence, that any one had told the company, or its superintendent, or conductor, or any employee having charge of the train, that it was too [337]*337short, or two inches too short. Had these, as facts, been proven, then would the request assume a different aspect.
Two witnesses swore, that, going up with the train the afternoon of the accident to Mr. Wright, the breakman said to them, that the axle of the car which had run off, was two inches too short, and that he had told them so. This same breakman, when sworn before the jury, denied that he had ever said so, and assigned a very satisfactory reason why he must have been misapprehended, or misstated, — that, had there been any thing wrong about the car, he would never, himself, have gone on it.
[3.] The sayings of the breakman should not have gone to the jury, until it had been shown that it was within his peculiar province to watch over and superintend the condition of the cars constituting the train, and having such a control as to direct which should go and which not. Beyond the scope of his agency, the principal cannot be bound by his sayings and acts. This should be looked to with care. It applies, with full force, in the ordinary transactions of, life; and, as corporate bodies, especially railroad companies, have, daily, their hundreds of employees, in various service, with divisions of labor and duty, simple justice requires that these companies shall not be liable for damage, upon the loose or casual sayings of every person who may be in their employment. If this was not already law, public policy, in fostering combined capital adding so much to the wealth and advancement of a people, demands that the same protection to these artificial persons as is constantly accorded to individuals, should be fairly given.
[4.] But, suppose that the sayings of this breakman had been legally admissible, the form of the request to charge is highly objectionable, as it virtually withdraws the question of negligence or culpability from the jury. The jury, alone, have the right of the determination of this question. It is a complex and difficult matter, often, to decide; as many considerations enter into it, and rarely any fact, of itself, is sufficient to establish it clearly. If it had been a [338]*338fact proved, that the axle was too short, still, beyond that was necessary the testimony of some expert, or persons familiar with the running of cars, to show that that was the cause of the accident: certainly the Judge has no right to determine what constitutes negligence.
"We have made these remarks, with the view of calling the attention of the bench and bar to the necessity of keeping the provinces of the Judge and jury as distinct as possible.
Counsel for parties certainly have the right, which we would not abridge, to have a principle of law springing from the testimony in the 'case, and pertinent to the issue tried, given by the Court; but they have no right to single out and specify a fact or two in testimony, and to ask the Judge to charge the jury that if they are satisfied such and such facts exist, 01 have been proven to their satisfaction, that, then, they should find so and so. It is difficult, perhaps impossible, to fix any rule' which will cover this matter. A prudent Judge will,’ at all times, 'guard himself against any encroachment on the right and duty of the jury, and, by a general charge, embrace all the legal instructtion to the jury necessary to be applied by them to the testimony. Beyond this, he should be cautious in going. Ho difficulty can arise by such a course: counsel nor clients are deprived of any legal right. If the verdict is wrong, either by misapplication of law, against evidence, without evidence, against the charge of Court, etc., on a motion for new trial, then, the Judge may speak out; as he is then compelled to consider the whole case, and if there is material error, to point it out and correct it by awarding a new trial.
[5.] In looking through the charges given, we see nothing of which plaintiff can rightfully complain.
In defining the degrees of diligence to which, respectively, “ carriers of goods ” and “ carriers of passengers ” are held, it is to be regretted that the same term is used “ extraordinary.” This requires change, as their liabilities are very different. Whenever this shall have been made, a simplicity [339]*339in the important doctrines of bailment will occur, greatly economizing the time of our Courts and labor of counsel.
Upon the whole, we think the law applicable to carriers of passengers, was' very fully and fairly given to the jury. Such being our best judgment, and as we cannot, by the rules of law, go into the merits of the case, or consider the great hardship which the plaintiff and her children have to endure, and not within our power to redress, we are constrained to affirm the judgment below.