Central Railroad & Banking Co. v. Lanier

Blandford, Justice.

A verdict was had for the plaintiff; a motion for a new trial was made by the defendant, which was overruled, and the defendant excepted.

*591 1. The main ground of complaint is the 6th, which is that the court charged as follows: “The jury is instructed that the foundation proposition which underlies all suits in favor of an employé against a railroad company for personal injuries sustained in the discharge of his duty is this : ‘To make a prima facie case for recovery, the railroad employé suing the company for personal injuries arising from an act in which he participated, must prove either that he was not to blame or that the company was.’ T,he company, in replying, may defend successfully by disproving either proposition, that is, by showing either that the plaintiff was to blame or that the company was not. By blame, I mean the want of due diligence. . The measure of diligence which the law imposes on railroad companies in reference to employés, and on the conduct of employés in reference to their companies, is ordinary diligence or common prudence.”

Section 3036 of the code authorizes an employé' to recover from a railroad company for injuries he sustains by reason of the negligence of other employés, when he is without fault or negligence. “Without fault” means, that the party suing must not have done anything to contribute to his injury, or must have done everything to prevent the consequences of the company’s negligence. In other words, he must show that he did nothing he ought not to have done, and neglected to do nothing he ought to have done. Under this clause of the code, we think this is the clear meaning of “without fault or negligence.” The rule of diligence to be exercised is ordinary diligence, as we find in all the books which we have been able to consult. The company owed to him only ordinary diligence, and he owed to the company the same diligence. At the same time, while his conduct must come up to the rule of ordinary care and diligence, it must appear *592 that he was without fault or negligence. This we understand the court to have charged substantially in the portion of the charge excepted to in this ground. , As has been decided by this court, it must have shown, presumptively or otherwise, where an action is brought by an employe for the negligence of another employé, that the plaintiff did not contribute substantially to the injury which he received.

2. The 7th ground complains that the court erred in charging that “by blame is meant the want of due diligence. The measures of diligence which the law imposes on railroad companies in reference to employés, and on the conduct of employés in reference to their companies, is ordinary diligence or common prudence.” Taken in connection with the whole charge of the court, we think this charge is correct. The construction of the phrase ordinary diligence is, of course, to be in reference to that diligence required of employés, and to that due from passengers or others, respectively, according to the class of persons whose conduct is under consideration.

3. The 8th ground complains that the court erred in charging: “It is also a principle of law that a.n employe suing a railroad company must be free from fault, and if ah injury is' sustained by him in consequence of any fault or negligence on his part, he cannot recover. To recover, he must have been blameless.” The exception taken to this charge is, that the court did not further define to the jury what he meant by the word “blameless,” having already instructed them as set forth in the 6th ground of the motion, that by the word “blame” he meant the “want of ordinary diligence.” We do not think there is anything in this exception. Fault is a big word ; and it is one easily comprehended by the jury. It means that nothing should have been done that ought not to have been done by the party *593 complaining, and that he should not have omitted anything that ought to have been done. The word “negligence” in this section of the code is merely superadded. It adds no strength, vigor or impressiveness to the word “fault.”

4. The 9th ground complains that the court erred in charging: “To sum up these instructions, if you find that defendant was not negligent, or if it was, that the plaintiff was also negligent, or could have avoided the injury by the exercise of ordinary care and diligence, your verdict will be for the defendant.” This exception is wholly without merit.

5. The 10th ground complains that the court erred in charging: “If you believe from the evidence that it was the plaintiff’s duty to go between the cars to make a coupling, and that before going in he gave the proper signal to the engineer to stop, and that the engineer stopped when the cars were close together, and that the plaintiff went in there while the cars were stationary to adj ust a pin or link with a view to making a coupling, and that while thus employed, the engineer caused the cars to come together without any notice to the plaintiff, and without the plaintiff’s giving him any notice or signal to do so, and that this was negligence on the part of the defendant’s servants thus to cause or suffer the cars to come together, and that the plaintiff was injured thereby, he would be entitled to recover in this action, provided he could not, by the exercise of ordinary care, have avoided the consequences to himself of this negligence, and provided he was not himself guilty of any contributory fault in the act resulting in his injury.” Ye think this charge was law and applicable to this case.

6. The error alleged in the 11th ground is, that the court charged: “If the accident resulted from the negligent moving of the train in the manner charged in the *594 declaration, while he was endeavoring in the line of his duty to lift or put in shape the bumper, then the fact, if it be a fact, that the bumper was defective would not bar his recovery.” We see no error in this charge of the court.

7. The 12th ground complains that the court charged the jury as follows: “ The plaintiff, if entitled to rer cover, would be entitled to compensation for the mental and physical suffering which he endured or may yet undergo from this cause.”

■ While we think it would have been better for the coui’t to have said nothing about the mental suffering of the plaintiff, inasmuch as. there is no complaint in the plaintiff’s declaration as to any mental suffering, yet we find it alleged therein that the plaintiff was, by the injury he had received, deformed; and this deformity must of necessity have produced not only physical pain, but mental anguish.

8. Another ground insisted upon strongly by the plaintiff in error is, that the court erred in not granting-a new trial because the damages in this case were excessive. The damages, it is true, are quite large; they -go to the extreme limit, if indeed not beyond it; and -in all such cases as this, the exercise by the courts trying 'the cases of their discretion to grant a new trial, would, it seems to us, be eminently proper. While this court rarely ever interferes with the discretion of the court below in granting a new trial or refusing to grant a new trial on the ground' of excessive damages, yet this court has the power so to do, and will not fail to exercise it in a proper case. If parties wish to hold their verdict in actions of this character, they should see to it that the verdicts are reasonable, and not such as to shock the moral sense. But we do not grant a new trial in this case, although strongly tempted to do so on account of this verdict. Judgment affirmed.