Georgia Pacific Railway Co. v. Freeman

Blandford Justice. A verdict was had for the plaintiff, and a motion for a new trial was made by the defendant, upon several grounds, which was overruled, and to that judgment the defendant excepted. 1. The 4th ground of error alleged is, that the court, in the first sentence of its charge as stated in this ground, required not only that the warnings should be given in the usual- and customary manner, but also in such manner as ordinary care and diligence required; whilst in the second sentence, the court instructed the jury that if the warnings were given in the customary manner alone, the defendant would be relieved from liability. The defendant insisted that the law was correctly [587] stated in the latter sentence, and that the first sentence imposed a rule of diligence upon the defendant not authorized by the law under the admitted facts of the case. This objection is more in the nature of criticism than a real complaint. 2. The 5th ground complains as to rule charged upon positive and negative evidence. We do not think there is any error in this charge. The rule as to positive and negative evidence was correctly given by the court. Whether there was any evidence to authorize the court to charge that the negative evidence was equal to the positive evidence where both the witnesses to the positive evidence and the witnesses to the negative evidence swore positively as to the fact whether a bell was rung, or not, we do not see how the coui’t could have charged otherwise than it did. 3. The 6th ground of the motion-complains of the charge of the court as to the rule by which the jury should be governed in estimating the damages. We have carefully considered the charge complained of, the main complaint being that the court stated that there is no fixed rule for estimating damages of this sort. While there may be a fixed rule as to the compensation which one may be entitled to, there certainly can be no fixed rule by which the jury must be governed in estimating the damages ; and we think that what the court said was eminently correct. Judgment affirmed.