Savannah, Florida & Western Railway Co. v. Austin

Simmons, C. J. 1. It appears from the record that the judge, when charging the jury-upon the subject of damages and the manner in which the jury might ascertain the amount thereof, adopted the suggestions made by this court in the case of Fla. Cent. R. Co. v. Burney, 98 Ga. 1. The plaintiff in error excepted to the use of this form, because, it alleges, certain words [618] and phrases therein amounted to expressions of opinion by the court as to what had been proved on the trial. It excepted to the statements: "You have the right to avail yourselves of the assistance to be derived from them ” (mortality.and annuity tables); “It becomes proper to explain them and inform you in what manner each can be made serviceable”; and to other portions of these charges, which may be found in the official report. The form of charge suggested in the above-cited case is not binding upon the trial judges, but it was very carefully and thoroughly considered by this court before it was adopted and promulgated; and since these exceptions have been taken to it, we have again carefully considered it, and we can not-find, either in the portions to which exception is taken or in any other part of the charge, any expression of opinion as to what has or has not been proved. It is simply an explanation of how and in what manner the tables should be used, if the jury should consider them at all. It appears to us that the judge is bound, when these tables are introduced in evidence, to explain to the jury how they may be used, just as he should explain a table of logarithms if it were introduced in a case involving questions which that table would illustrate. And so he should explain an almanac introduced to show the phases of the moon or the time of the rising and setting of the sun, etc. It being the duty of the trial judge in a case like the present to explain the mortality and annuity tables to the jury, he having adopted the form of explanation suggested by. this court, and this court being of opinion that the form is a proper one and that it does not express or intimate any opinion as to any fact proved, we think that the trial judge did not err in overruling these grounds of the motion for a new trial. 2. Austin was an employee of the railway company. He was a section-master, and was in no way connected with the running of the train or the act of negligence by which he was injured. It seems, therefore, that the charges excepted to in the-first three special grounds of the motion for a new trial were not applicable to the case. Central R. Co. v. Kelley, 58 Ga. 113. Even had they been applicable to the facts of the case, we think that the criticisms made are not well founded. While619 the code uses the words “without fault” with reference to an employee, this court has in many cases construed them to mean the same as “without negligence,” and has used “fault” and “negligence” as being in this connection synonymous. The charges, therefore, if applicable, were not erroneous. On the other hand, if they were not applicable to the facts of the case, they could not have hurt the defendant but worked against the plaintiff by imposing upon him a burden greater than was authorized by law. Of this the defendant can not be heard to complain. The verdict was authorized by the evidence. While it was large we can not say it was so excessive as to show bias or prejudice on the part of the jury which rendered it. Questions of this sort are left to the discretion of the trial judge; and when he is satisfied with the verdict, as evidenced by his refusal to grant a new trial, only a very strong case would authorize this court to set aside, the verdict as excessive. Judgment affirmed. All the Justices concurring.