East Tenn., Va. & Ga. Railway Co. v. Warmack

Blandeord, Justice. Defendant in error sued the railway company for damages sustained by reason of the negligent running of the company’s train, whereby a collision was caused with defendant’s wagon and team, in which the wagon was damaged and the mules badly crippled. A verdict was had for the defendant in error; the railway company moved for a new trial, which was overruled by the court, and it excepted. It is complained by the plaintiff' in error that the verdict of the jury was contrary to law, to the evidence, etc. We think, however, that the verdict was in accordance with the law and the evidence in the case. It is further alleged as error that the court charged the jury that “The measure of damages is the difference in the value of the mules before and after the injury occurred, and you may add thereto any damage the plaintiff may have sustained on account of loss of time of the mules, if the proof shows any.” We do not think the plaintiff in error was in any way injured by this charge, as it does not appear that the jury added to their verdict any damage on account of the loss of time of the mules. The 4th assignment of error complains that the court refused to give the following request in charge to the jury: “A railroad company would not be liable for an injury simply because at the time the injury happened the train might be running or handled in a manner forbidden by law, but to make the company [355] liable in sueb a case the failure to comply with the law must operate as a cause of the injury; in other words, if the injury would not have occurred but for such violation of law, then the company would be liable, othertvise it would not.” "We think the court did right to refuse this charge, because, according to the evidence, it appears that the injury oceuiTed by reason of the company having violated the law in running its train to and over the crossing in an illegal manner. The 5th assignment of error complains that the court permitted the witness Andrew "Warmack to testify that the hire- of the mules was worth $2.75, and the driver, would be worth 50 cents per day, Avhich would make the hire of the mules' $3.25 per day; this testimony being objected to on the ground that it Avas' illegal and that the pleadings did not authorize the introduction of proof of value of the mules, there being nothing claimed in the declaration for hire. We do not think there was any' error in permitting this testimony ; at least, not such error as would give the plaintiff in error a right to complain of here, as it does not appear from the record that the jury allowed any damage on account of the loss of hire of the mules, and the amount of damages found by the juxy was fully authorized by the evidence as to the injury to the wagon and mules, which damage was sufficiently alleged in the declaration. Judgment affirmed.