Western & Atlantic Railroad v. Drysdale

Trippe, Judge. 1. One point made, in the argument was, that in estimating damages in the case of a tort to the person, the jury could not consider the pain and bodily suffering endured by the party injured. This question we consider was settled in Cooper vs. Mullins, 30 Ga., 146. It is stated in that decision, as the correct rule, that “surely there ought to be some compensation for the suffering endured.” There may be, and often are, injuries where there are intense pain and great bodily suffering, which may last for a considerable time, and but very little, if any, pecuniary damages, and all caused by the grossest negligence of the defendant. Any one can easily imagine such. We did not consider it an open question as to the right of the jury to consider this in fixing the damages: See New I. R. R. vs. Kennors, 21 Pa., 203. 2. Are the damages given in this case excessive ? There can be no question but that the negligence of those who were in charge of both trains was gross. The lumber train which ran against the passenger train, or rather struck the passenger train as it passed, had a car loaded with lumber, with a standard so forced out of an erect position that it reached to the passenger train, and broke the defendant’s arm as it went by. The agent in charge of the freight train had observed the standard, but thought the cars could pass. They did pass, but at the imminent hazard of those in the passenger train, and to the great hurt and damage of defendant in error. There was such want of care and prudence on the part of this agent, as to make it a case of gross negligence, and the fact that the officers on the passenger train did not observe the inclined standard, or if they did, that they permitted those under their care to be thus endangered, strengthens this view. Section 3066 of the Code says, “in every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages,” etc.: See, also, Ga. R. R. and Banking Co. vs. McCurdy, 45 Ga., 288. The judge who tried the case did not [647] think the verdict should be set aside on this ground, and we cannot say he abused his discretion. Judgment affirmed.