In Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36 (60 S.E.2d 770). it was held that, where the injured party proceeds against the remaining joint tortfeasors after executing a covenant not to sue one joint tort feasor for the same injury, upon a consideration received, the amount of the damages awarded should be reduced to the extent of the consideration received for the covenant not to sue.Summary of this case from Harmon v. Givens
DECIDED JUNE 15, 1950. REHEARING DENIED JULY 14, 1950.
Damages; from Thomas Superior Court — Judge Lilly. October 29, 1950.
W. W. Alexander, S. Spencer Bennet, T. K. Vann Jr., for plaintiffs in error.
Forester Calhoun, contra.
1. "It is a well-settled principle of law that where two concurrent causes operate directly in bring about an injury, there can be a recovery against one or both of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause."
( a) In the present case where the plaintiff was injured while riding as a passenger in a taxicab, which was proceeding over a public railroad crossing behind another automobile, and where the taxicab driver observed the approaching train before starting across the railroad tracks upon which the taxicab was struck by the train, it was a question for the jury, under the allegations of the petition, whether the proximate cause of the plaintiff's injury was the alleged negligence of the defendants or that of the taxicab driver or the concurring negligence of both in producing the plaintiff's injury.
2. A written covenant not to sue one of two joint tort-feasors is not, under the provisions of the Code, § 20-909, which states that it is "equivalent to a release," a release of the other joint tort-feasor, and does not bar a proceeding against him, but any sum received from the first may be pleaded and proved in reduction of the amount of damages to be awarded by the jury.
3. The evidence was sufficient to authorize a verdict for the plaintiff, but because of the error of the court in sustaining the demurrer to the defendants' amendment to its plea and answer, setting up, in mitigation of damages, the receipt by the plaintiff of $4000 from or on behalf of the taxicab driver, who might reasonably have been found by the jury to have been a joint tort-feasor, and a covenant not to use such person, the jury, in fixing the amount of the verdict, necessarily did not take into consideration this sum which the plaintiff apparently concedes in its brief of counsel was in fact paid, and, accordingly, direction is being given that such amount be written off the verdict.
4. The charges of the court to the effect that an element of damage for pain and suffering is "loss of capacity to make a living" and that "The guide for fixing damages, if any, for pain and suffering, or diminished capacity to labor, as distinguished from earning capacity, is the enlightened consciences of impartial jurors, acting under the sanctity of their oath" are not subject to the criticism that they authorized a recovery for loss of earning capacity, although there was no pleading or proof as to such loss, and for double damages. In the present case, where the plaintiff was an eleven-year-old girl, the jury could not reasonably be said to have understood the court to mean other than loss of capacity to labor, especially as in the second excerpt the court, in distinguishing "earning capacity," stated that the guide for fixing the damages, if any, for pain and suffering, or diminished capacity to labor is "the enlightened consciences of impartial jurors," etc.
DECIDED JUNE 15, 1950. REHEARING DENIED JULY 14, 1950.
Janice Irene Ouzts, by E. H. Ouzts as next friend, filed suit in the Superior Court of Thomas County, Georgia, against Atlantic Coast Line Railroad Company and Cecil Kirby, alleging the following: The defendant Cecil Kirby was, on October 23, 1948, and at all times mentioned in the petition, the agent, servant and employee of the defendant railroad company, acting within the scope of his authority and in the discharge of his official duties. The defendants have injured and damaged the plaintiff in the sum of $75,000 by reason of the facts hereinafter set out. For more than 25 years prior to October 23, 1948, the main line of the defendant railroad company, passing through the City of Thomasville in an east-west direction, has crossed a public street in the said city known as South Hansell Street which extends from north to south. The said crossing at the intersection of the main line of the defendant company and the said South Hansell Street is a public railroad crossing, located in a populous area of the said city, and is frequently and continuously used by both vehicular traffic and pedestrians. On October 23, 1948, at about 11.30 a. m. the plaintiff was traveling south on South Hansell Street in the said city as a passenger in a 1946 Ford automobile operated by one Carrol W. Simmons. At the time aforesaid the automobile in which she was traveling approached the said intersection and at that time a train of the defendant company was being operated in an easterly direction on the said main line railroad by the defendant Cecil Kirby. As the said cab approached the said railroad crossing the train was several hundred feet west of the crossing The operator of the cab proceeded into the crossing with due caution. Immediately ahead of the cab and traveling in the same direction was a car being driven by Mrs. Floyd Zeigler. After crossing the tracks of the main line of the railroad Mrs. Zeigler came to a stop, thus blocking the forward path of the cab, and the cab, being unable to proceed further forward, stopped behind the Zeigler car. There was nothing between the approaching train and the stalled cab to obstruct the view of the engineer. The train was more than 150 feet west of the crossing at the time the cab stopped with the rear portion of the cab on the track. Although the plaintiff's perilous position at the time was apparent to agents and servants of the defendant railroad company in charge of the train and acting within the scope of their employment in the discharge of their official duties, or by the exercise of ordinary care should have been apparent, they failed to check the speed of the train or to take other reasonable precautions to avoid injuring the plaintiff. The defendant Cecil Kirby drove the said locomotive into and against the rear portion of the said cab with great force and violence, causing the plaintiff to be thrown from the rear seat of the cab under the wheels of the said train, inflicting serious and permanent bodily injury upon the plaintiff, her left leg being crushed and mangled to such an extent that amputation between the ankle and the knee was necessary, and the plaintiff being otherwise injured as detailed in the petition. The defendant who was operating the train was negligent in failing to apply the brakes of the train or to otherwise check the speed of the same or to exercise other reasonable precautions to avoid injury to the plaintiff after her perilous position, as aforesaid, was discovered or by the exercise of ordinary care should have been discovered. The defendant engineer of the train was negligent in failing to keep and maintain a constant and vigilant lookout along the track ahead of the locomotive as it approached the said public crossing, in violation of the Code, § 94-506, which is negligence per se. The employees and agents of the defendant company were negligent in failing to check the speed of the train as it approached the said crossing, in order to avoid injury to persons or property that might be on the crossing. They were negligent in failing to anticipate the presence of the plaintiff at the time and place aforesaid and in failing to exercise ordinary care to avoid injury to the plaintiff. They were negligent in failing to signal the approach of the train to the said public crossing by constantly tolling the bell of the locomotive of the train, in violation of the Code, § 94-507, which is negligence per se. The defendant company and its employees in charge of the train were well aware that the crossing was and is most dangerous and were negligent in not having a flagman or someone warn traffic of the approach of the train. The said train was driven into and through the said crossing by the employees of the defendant company at a speed in excess of twenty miles per hour, and at that time there was in force in the City of Thomasville an ordinance regulating the speed of trains within the City of Thomasville at 20 miles per hour, a copy of the said ordinance being set out in the petition, and such violation was negligence per se. The agents, employees and servants of the defendant company, whose identities the plaintiff has been unable to ascertain, were negligent, while acting within the scope of their authority and in the discharge of their usual official duties, in that they failed to have the air hose of the air brakes on the various cars of the train connected so as to be able to keep the train under proper control. The acts of negligence on the part of the defendant Cecil Kirby and the other agents, employees, of the defendant company were the direct and proximate cause of the plaintiff's injuries, as a result of which injuries she will be crippled and maimed for life. By reason of the said injuries she has suffered great physical and mental pain, suffering, anguish and humiliation and will continue to suffer the same, by reason of which she is entitled to recover of the defendants the sum of $75,000. The prayers were for process and judgment in the premises.
The defendants filed their answer denying the substantial allegations of the petition as to their negligence, and setting up that the negligence of the cab driver in attempting to cross the track in front of the approaching train and in failing to otherwise exercise ordinary care was the proximate case of the plaintiff's injuries.
The defendants amended their plea and answer by setting out that at the time of the collision the taxicab was being operated as a common carrier of passengers for hire, and that the proximate cause of the plaintiff's injuries were the following acts of negligence of the driver of the cab: (a) Attempting to cross the track ahead of the train after seeing its location and speed. (b) Failing to turn his cab either to the right or left of Mrs. Zeigler's car so he could pull off of the crossing. (c) Failing to back the cab up after he saw that it was not clear of the track. (d) Operating his cab at a dangerous location too close to the car preceding him so that he would have no opportunity to protect his passengers in any emergency.
The defendants further amended their plea and answer by adding paragraph 30 in which they set out a covenant not to use executed by the plaintiff to the cab driver and others in consideration of the sum of $4000, a copy of which was attached and made a part of the amendment, and in which the following recitals, among others, appear: "Janice Irene Ouzts in person, or through her guardian, next friend or legal representative will never sue or bring any legal action or proceeding against them [the covenantees] or either of them, or their legal representative or successors, for or on account of any injury or damage Janice Irene Ouzts may have sustained by virtue of or arising out of a collision" involved in the present action. "Reserving unto Janice Irene Ouzts the right to proceed against any and all other parties involved in said incident for the recovery of full satisfaction of any claim for damages which she may have arising out of the aforesaid incident. This covenant not to sue is executed by the guardian on behalf of his ward, not in satisfaction of any damages sustained nor as compensation for injuries, nor in settlement of any claim for damages, and said money is paid and accepted as the consideration for the covenant not to sue the parties or either of them to whom the covenant flows" and it was recited that it was understood and agreed that the convenantees expressly denied liability. The amendment prayed that recovery, if any, be mitigated by the amount so paid.
The defendants further amended their plea and answer by adding paragraph 31 in which they alleged that the plaintiff, on December 20, 1948, had executed to the cab driver and others a release from "any injury or damage Janice Irene Ouzts may have sustained by virtue of or arising out of" the collision involved in the present action. A copy of the said instrument was attached to the amendment as an exhibit and made a part thereof and was identical with that attached as an exhibit to the foregoing amendment. The amendment prayed that recovery be denied.
The plaintiff demurred generally to the allegations in paragraph 30 on the ground that they set forth no valid legal defense or reason for contribution, and to the allegations in paragraph 31 on the ground that they set forth no valid defense to the action. The court sustained the demurrers.
When the case came on for a hearing the defendants made an oral motion to dismiss the petition as amended on the ground that no cause of action was set forth against them. The court overruled the motion.
The defendants filed and had duly certified exceptions pendente lite to the judgments sustaining the demurrers to the amendments adding paragraphs 30 and 31 and overruling the motion to dismiss.
Upon the trial of the case the evidence was substantially as follows:
Carroll W. Simmons testified: On October 23, 1948, he was operating a taxicab in the City of Thomasville. The plaintiff was picked up as a passenger about 11:30 that morning. The route he took carried him across the crossing on Hansell Street. As he reached a peanut warehouse to the immediate right and north of the track he was approaching, a 1946 Plymouth was proceeding across the tracks ahead of him. He was traveling about two automobile lengths behind that car, operating his taxi between ten and fifteen miles an hour. As he entered upon that crossing and started across he observed a train to his right. In his opinion he had time to get across. He had been driving cars for some time. The train was proceeding east of town. After he proceed on across the track, or started to cross, the car ahead of him stopped, after which he went on across. He tried to push her to get her to move. In the effort to push the car ahead of him his taxi choked down. At that time he wasn't looking at the train. He did glance at it, but he wouldn't say how far down the track it was. He had a clear view of the engine as it approached the crossing. He has been driving a taxi for some months. He is familiar with speed. In his opinion the train was operating about 30 or 35 miles an hour at it approached the crossing. After his car stalled he did not hear any screeching or brake wheels or slamming on of brakes or anything to indicate the engineer was making any effort to stop the train. After the cab was struck by the engine it was turned almost completely around. He saw the train as soon as he got clear of the peanut warehouse. He knew the train was coming. The train looked to him to be running 30 or 35 miles an hour. If the Plymouth had gone on he would have had ample time to get across. She just stopped there plumb straight with the center line. It didn't look like there was any room to go between her and the curb. It was somewhere around 50 feet from the peanut warehouse to the main line. He could have stopped his car within that distance when he saw the train running at that speed. He was going to back up if his car had not stalled. He was driving behind the woman ahead of him at the distance he normally drives behind people in traffic.
A. B. Clark testified: He was standing on the sidewalk near the crossing just prior to the collision. There was approximately a car and a half or two cars distance between the car and the taxi. The taxi went right across behind it. After the taxi was stopped the train was just below a sign down the track on the right as the train was coming up. As the train approached the crossing the taxi seemed to go backward and forward, and the witness didn't know which away it wanted to go, but it didn't seem to make any proceedings whichever way it was. He seemed to go forward, the one in the rear at that time. He didn't know whether it was the taxi or what, but it was in the rear at the time, and that one behind proceeded to go forward and stop. The engine had picked up speed when it crossed the other crossing down at Broad Street. It didn't check up until it hit the collision. There was nothing to indicate to him that the engineer made any effort to slow down before he struck the taxi. He heard no sudden screeching of brakes or skidding of steel until after the collision, and, of course, he applied his brakes and he stopped quick and the crew ran down there. After the collision the train and two cars went right straight across the crossing. He noticed where the rear car of the train stopped. He walked 37 steps down to the rear end of the car where they picked up the pocketbook. He later pointed this out to a surveyor, Mr. Dunlap, and also pointed out the place west of the crossing where he saw the train after the taxi stopped. The engine was below the signboard west of the crossing when the taxi stopped on the track. In his judgment the train was running around 25 miles. When the taxi went over the track it was running around 20 or 25, that is, before they went across the track. (At this point the witness was examined with reference to a written statement which he admitted signing and which contained some statements which were in conflict with his testimony on the trial of the case.) It wasn't but a few minutes from the time the taxi stopped until it was struck.
Walter Hardin testified: He is a farmer. Just prior to the collision here involved he was standing on the back platform at the mill right off from the railroad and saw a switch engine traveling on the track, his attention being attracted to it by the speed it was making coming towards town. He has been driving an automobile probably 20 or 25 years. He is fairly well familiar with the speed of automobiles and trains. In his opinion the speed of the train as it approached the crossing was somewhere around 30 miles an hour. He did not hear or notice anything done by the train to indicate it made any effort to slow down prior to striking the taxi.
Howard Booker testified: A few years ago he was employed by the A. C. L. Railroad for approximately 5 years. He worked on the switch engine and ran it quite often. He is familiar with Hansell Street and the switch engine used here. Assuming that he was running the switch engine around 15 to 20 miles an hour he should stop at 25 or 30 feet. He never ran an engine. He just switched the other engine working with the engine. If the engine were running at 20 to 25 miles an hour it should be stopped in around 20 to 25 right on. He never operated an engine at all. "He made a run when he didn't have nothing else to do, he did, just around the railroad yards."
Janice Irene Ouzts, the plaintiff, testified as to her injuries but stated that she remembered nothing that happened just prior to the collision and was knocked unconscious.
E. R. Jerger testified that he was editor of the Times Enterprise of Thomasville where he had lived for 30 or 40 years and more. He was generally familiar with the Hansell Street crossing, and it is more used now than it has been and is a very important crossing.
W. R. Dunlap testified: He is a licensed surveyor and made certain measurements at the Hansell Street crossing and prepared a map which was introduced in evidence. The distance of 85.8 feet to a rail pointed out by him was pointed out to him. From the west edge of the crossing to the signboard is 139 feet. It is 1237 feet from the center of the crossing of the main tracks to the west side of the old A. B. C. station and which he measured. It was a little over 1000 feet to the east side. If you stand at the southeast corner of the peanut plant on the curb and sight past the corner of the plant westward you can see 395 feet in a straight line down to the center of the track to where this line of vision would intersect. When you are as much as 25 feet south of the peanut plant you could see way down the track to the station. He prepared the plat from measurements pointed out to him by Mr. Clark.
Howard Henderson testified: He worked for railroads about 12 years, and, lacking six days, worked with the Coast Line a year, was familiar with the switch engines of the City of Thomasville and was familiar with the Hansell Street crossing. It is a populous crossing. He did not operate switch engines. Where a switch engine with two loaded box cars was traveling at 20 to 25 miles an hour and approaching Hansell Street crossing, and something at the crossing would require stopping, 40 to 50 feet would be required to stop the train. If one were standing by, in view of the train at the moment the brakes were applied, he would be able to tell when the brakes took effect. It would take about 50 feet to stop an automobile at 20 miles an hour.
Miss Mildred Bulloch testified: She is a registered nurse and attended the plaintiff when she was in a hospital after the collision here involved. She testified as to the injuries of the plaintiff, shock, etc., mangled leg and amputation, loss of toes on her right foot except one, her suffering and pain, etc.
W. H. Thames testified: He is a surveyor by trade. He made a plat showing the conditions of Hansell Street crossing and made the measurements, which, as far as he knows, are correct. He identified the plat.
Dr. Frank Little testified: He is a surgeon and treated and observed the plaintiff when she was in the hospital after the collision. He testified that her left leg is completely gone and that she has a 60 to 75 percent disability in her right leg which, in his opinion, is permanent. She suffered considerable pain, and for the first few days it was doubtful whether she would live.
Cecil Kirby testified: He is employed by the A. C. L. Railroad in the capacity of engineer and was the locomotive engineer on October 23, 1948, when he was operating a switch engine with two loaded box cars in the Thomasville yard. As he approached the Hansell Street crossing on the occasion of the collision here involved he was sitting on the engineer's seat box on the right side of the engine behind the boiler. He was blowing the air whistle and was watching out to the front to the right of himself. The conductor was ringing the bell. He heard the bell ringing. He started blowing the whistle at least 200 yards before he reached the crossing. His engine was traveling from west to east at about 15 miles an hour. The first thing he saw was a car, driven by a lady, go across from north to south. After crossing the crossing she stopped, approximately three or four box car lengths ahead of his engine. A box car is approximately 40 feet long, and she was then, in his opinion, between 120 and 160 feet ahead of him when she went across. In approaching the crossing the north side of the crossing is obstructed from his view by the boiler of the engine extending in front of him. It was not possible for him to see the cab before it got to the crossing. The engine he was driving was about 65 feet long and the boiler is approximately 6 to 8 feet wide. When he saw the taxi stop on the crossing he immediately jammed his air brakes and put his automatic brake valve in emergency position. When the train stopped the rear wheels of the coal and water tender were on the east half of the crossing. The locomotive did not completely clear the street. He made two stops on that crossing, made one crossing and one on the other side of the crossing. It looked to him that the taxi went as far as he could behind the Plymouth before he stopped. The engine was between three and four car lengths from the crossing when the car ahead of the taxi crossed. The next thing he saw was the taxi come behind the car and stop. He stopped it as quick as he could. He was going up an incline, 15 miles an hour. You can not see the crossing when you get within one or two car lengths of it. That is when your switchman and fireman and flagman come in to help you. He did not get any flagging at all. He stopped in about 92 feet, at 15 miles and hour, in 5 to 7 seconds.
Dr. C. Watt testified as to the plaintiff's injuries substantially as did Dr. Frank Little.
J. T. Hawkins testified: He was firing the engine on the occasion of the collision, riding behind the conductor. The bell was ringing and the air whistle blowing as the train approached the crossing. The taxi, at the time he saw it, had time at its speed to cross. The train was running about 15 miles an hour when he saw the two cars at the crossing. He didn't know the Plymouth car had stopped. The taxi attempted to slow down and then speeded up. If you were going up hill with two loaded cars at not over 15 miles an hour, and the weather was dry, if you put your brakes on emergency you could stop pretty quick.
Cecil Kirby, recalled, testified: The air on the two box cars was coupled.
Fred Horne testified: He worked for the Atlantic Coast Line Railroad about 5 years. Just prior to the collision here involved he was riding on the front footboard of the locomotive on the right-hand side. The train was running 15 to 20 miles an hour, the bell ringing and the whistle sounding. When the taxi came from behind the peanut mill it looked as if he slowed up when he first entered the crossing and then sped up right quick to go across at about 20 miles per hour. As he went on the main line the locomotive was right at him, not less than a car length, if that far. The brakes were applied, but the witness could not say exactly where. After the engine struck the taxi it traveled the length of the engine plus 6 or 8 feet. The taxi stopped north of the Plymouth and right in behind it. It could have pulled to the left of the Plymouth. I didn't have time to give anybody any signal.
E. P. Jones testified: He was working as yard foreman with the Atlantic Coast Line Railroad on October 23, 1948. He was riding on the fireman's seat box on the engine that was in the collision here involved, watching ahead and ringing the bell by hand. He heard the engineer blowing the air whistle. The train was going about 15 to 20 miles an hour as it approached the crossing. After a Plymouth crossed he saw a taxi on Hansell Street. It looked like he slowed down and then picked up speed and started across and was about a car length from the front end of the locomotive as it started across, 40 or 50 feet, something like that. As a result of application of the brakes by the engineer the engine stopped with the back part of the tank on the crossing. He has not run a train himself and is not familiar with the operation. He thought they were going 15 or 20 miles an hour and were 160 feet down the track when the witness saw the first car go across. The taxi was further behind the first car than just far enough to keep from hitting it.
J. M. Perry testified: He was general yardmaster of the A. C. L. Railroad. He was present when the engine, which was in the collision, and two box cars with approximately the same loads in weight as the two in the collision made some tests in approaching Hansell Street crossing.
Harry Wyche testified: He has been railroading 47 years and has run an engine since 1907 with the exception of 13 years. He was present on Saturday, July 16th, when some tests were made with engine No. 370, which was in the collision, and two loaded cars at Hansell Street crossing. Engine No. 370 is 65 feet long from the back drawhead, the engine and tender. It is 35 feet from the front drawhead of the engine to the middle of the seat box where the engineer sits. It is 44 feet and 2 inches from the west boundary line of Hansell Street to the curb line on the east side. A point was measured off 55 feet west of the western boundary of Hansell Street to indicate, as he remembers, where the engineer would be on the right seat box where he could see from the front of the engine, his distance from the crossing. According to the measurement the engine would be 20 feet east of the western boundary of Hansell Street. The witness rode on the engine and made some of the tests himself. The tests were made from a point 20 feet west of the crossing. He applied the brakes when the front of the engine was 20 feet west of the crossing, the engineer. about 35 feet back, and the witness 55 feet west of the crossing. At 15 miles an hour the front of the engine went 77 feet and 5 inches east of the curb, which made it travel 20 feet to the west of the boundary line, 44 feet and 2 inches to the east curb, and 77 feet and 5 inches more, or a total of 144 feet and 7 inches. Mechanically and physically it was impossible to stop it quicker at 15 miles an hour. At a 20 miles an hour test it went 192 feet and 1 inch, and at a 25 miles an hour test it went 229 feet and 2 inches.
Josh Smith testified: He had worked 48 years for the A. C. L. Railroad and has been a locomotive engineer for 43 years. He participated in the tests referred to by the preceding witness and operated the engine, testifying as to the results as did the preceding witness.
Miss Sara Singleton testified: She was in the Plymouth car ahead of the taxi. She went on across the railroad and gave a signal. The engine was about half way between the crossing and the old railroad station when she crossed. When she came to Metcalf Avenue she stopped and gave a signal with her left hand. The witness did not see the taxi. She reckons the Plymouth had been stopped a minute or two when she heard the crash. The weather was clear and dry.
Mrs. Hazel Parrish testified: She was in the taxi, sitting in the middle of the back seat. As they approached the railroad track she heard the train blowing. She saw the train immediately after passing the peanut mill. The taxi was about the first track north of the crossing, she thinks, when she saw the train. The train was giving signals, the whistle blowing, the bell ringing. As the taxi drove on the main line there was a car stopped on the other side and it stopped behind that car. The driver of the cab did not slow down in approaching the crossing. He speeded up to get across, but he wasn't driving too fast. The witness thought he had time to get across if the other car had not been in the way. There wasn't any way he could have turned out in the street without stopping behind the other car. There was room if he had time to back up. She did not think the engineer slowed down the train before hitting the taxi. There was no kind of emergency whistle blowing and she did not hear any brakes.
Mrs. Floyd Zeigler testified: At the time of the collision she had crossed the railroad and stopped her car, intending to turn in on Metcalf but a truck was blocking the road and she could not. The train was on the track on the south side. Her attention was attracted to the train by the ringing of the bell and the blowing of the whistle. As she approached Metcalf Avenue she put out her hand and signaled to let "him" know that she was going to turn in Metcalf and stopped her car. She had crossed and stopped when she first saw the taxi. It had never got to the first track next to the peanut mill when she first saw it. The front end of her car didn't go into Metcalf Avenue before she stopped. She was in the right hand traffic lane, next to the center line. There was room for a car to pass on her right, and there was plenty of room on the left side of his car. She saw the taxi when it drove up on the main line of the railroad. The train was nearly about right on him when he drove up there. At that time the bell was ringing and the little whistle blowing. The train was so close he didn't have time to get out of the way before it hit him. He never did bring his car to a complete stop until the train hit him. He was about the center of the road when the train hit him. He did not pull in immediately behind her. He was about the center of the road. He would have been to her left. He never did stop the taxi before the train hit him. The taxi never touched her car, making an attempt to push it out of the way, did not touch it at all. The train stopped on Hansell Street, blocking the crossing. When she testified she signalled, that before stopping she signalled "him" she was talking about the taxi. She gave the signal while still in motion and kept her hand out after she stopped. She saw the cab before she stopped. He had not got to the railroad when she gave the signal. He was beyond the crossing and she had got across. He had not stopped. She saw the car through the rear vision mirror of her car, didn't turn to look at the train, was watching the cab, and was more interested in the cab than the train because she knew she was out of the way. She is positive it never stopped until the train hit it. "The taxi was coming straddle the center line as if it was going to pass me on the left. If it got by before the train hit it, it would have passed me on the left and not attempted to pull in behind me. The taxi was going at the same speed when I first saw it as when it was hit by the train." She believes she could have told if it speeded up.
V. F. Jenkins testified: He was working for the A. C. L. Railroad at the time of the collision and was riding on the engine on the back of the tank on the engineer's side and was riding backwards. As the engine approached the crossing the engineer was ringing the bell and blowing the whistle. He felt the brakes go on.
J. D. Albritton testified: On the occasion of the collision he approached the crossing while driving a truck and noticed a Plymouth automobile at the crossing. He saw the train when it started stopping. It proceeded across the crossing before it stopped. He did not hear anything to indicate that the brakes had been applied and did not notice any perceptible slowing down of the train. He guesses that the engine was about 100 feet from the crossing when he first noticed the train and the taxi. His truck was stopped south of Metcalf Avenue. There was room on the left of the Plymouth for the taxi to have stopped facing his truck but not on the right of the Plymouth.
Edward Ferguson testified: He was driving a truck on the occasion of the collision and followed the truck driven by the witness Albritton. He stopped his truck before he got to the crossing. He noticed a 1942 Plymouth stopped at the crossing. There was a train about 100 feet from the crossing. He saw a taxi stopped at the crossing. He noticed the speed of the train and figures it was running around 30 to 35 miles an hour. He did not see anything that indicated that the engineer made any effort to slow down the train. After hitting the cab the train proceeded on across the crossing about 50 yards. (At this point the witness was examined as to a signed statement by him that the train was running 10 to 12 miles an hour, but he insisted that he had stated 30 to 35 miles an hour and did not read the statement.)
The following documents were introduced in evidence: A diagram with measurements of the location of the tracks and Hansell Street crossing. Ordinance limiting the speed of trains in the City of Thomasville to 20 miles an hour. Birth certificate showing that the plaintiff was born on October 31, 1937. A photograph of the tracks and crossing at Hansell Street. Statements in writing of A. B. Clark and Edward Ferguson about which they were examined on the trial.
The jury returned a verdict for the plaintiff in the sum of $40,000, and judgment was entered accordingly. The defendants filed a motion for new trial, and by amendment added several special grounds which are referred to in the opinion hereinafter. The court overruled the motion, and the exception here is to that judgment and the rulings complained of in the exceptions pendente lite.
1. Besides alleging a violation of an ordinance of the City of Thomasville limiting the speed of trains within the city to 20 miles an hour, which violation is negligence per se, the petition sets forth other acts of negligence against the defendant railroad. It also alleges that the negligence was the proximate cause of the injuries to the plaintiff, who was a passenger in a taxicab proceeding over the crossing, and who was not shown by the petition to have been negligent in any respect. The jury would have been authorized to find upon proof of the allegations of the petition that the driver of the taxicab was also negligent in attempting to cross the tracks with the train approaching, and while immediately behind another car without maintaining an interval of distance which would have permitted him to pass to the left or to the right if safety so required. The following well-stated principles of law are applicable here: "No general yet precise and inflexible rule can be laid down with reference to the highly involved and much discussed subject as to what constitutes the proximate cause of an injury. Consequently each case must depend for solution upon its own particular facts; but it is a well-settled principle of law that where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either one or both of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause. [Citing] The determination of questions as to negligence lies peculiarly within the province of the jury, and in the exercise of this function the question as to what constitutes the proximate cause of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to. [Citing] It was not error, therefore, for the judge to overrule the railway company's demurrer to the petition, since it was properly a question of fact, for the jury to determine from the evidence, whether the defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent acts of negligence of both wrong-doers, or the separate acts of either of them, constituted the proximate cause of the injury." Georgia Railway Power Co. v. Ryan, 24 Ga. App. 288 ( 100 S.E. 713). See also McGinnis v. Shaw, 46 Ga. App. 248, 250 (2) ( 167 S.E. 533); Eidson v. Felder, 68 Ga. App. 188, 191 ( 22 S.E.2d 523), and cit. Whether the alleged negligent acts of the defendants constituted the sole proximate cause of the plaintiff's injury, or concurred with the acts of the driver of the taxicab, which might be found to be negligent, as the proximate cause, or whether the sole proximate cause of the plaintiff's injury was the act of the driver of the taxicab in proceeding over the crossing under the circumstances stated in the petition, were questions for the determination of the jury. The petition set forth a cause of action against the defendants, and the trial court did not err in overruling the motion to dismiss.
2. One question raised by the assignment of error on the judgment sustaining the plaintiff's demurrer to paragraph 31 of the defendants' amendment to their answer is whether or not the instrument which the plaintiff executed to the taxicab driver, who under the allegations of the petition the jury might find was a joint tort-feasor, had the effect of barring the plaintiff from proceeding against the defendants. The defendants recognize that the instrument was by its express terms a covenant not to sue but contend that it was in substance a release. The plaintiff relies upon the provisions of the Code, § 20-909, that it is only the equivalent of a release and does not have the effect of barring the action against the defendants. That section provides: "A covenant never to sue is equivalent to a release; so also is a bond to indemnify the debtor against his own debt." This language first appeared in the Code of 1863 as § 2802, and was not based on any statute, but was what the codifiers conceived to be the common law, their commission under the act of 1858 (Ga. L. 1858, p. 95), being to prepare a code which should embrace in a condensed form the laws of Georgia "whether derived from the common law, the Constitutions, the statutes of the State, the decisions of the Supreme Court, or the Statutes of England, of force in this State." It will be observed that the section does not provide that such a covenant shall be a release but is equivalent to a release. Manifestly such distinction was not made without design. If it was intended that the covenant be in all respects a release, a much shorter statement would have been that it is a release. To construe the true meaning and efficacy of such a covenant not to sue we are, therefore, driven to the common law.
At common law, according to 8 Bacon's Abridgment, p. 249, at law a release of one joint debtor releases the other. This principle was evidently in the minds of the codifiers of the Code of 1863 when they chose to say "equivalent to" rather than to say is a release. It is expressed in the Code, § 20-910, and in Ward v. Fleming, 18 Ga. App. 128 (1) ( 88 S.E. 899); Redpath Chautauquas Inc. v. Parks, 33 Ga. App. 415 ( 126 S.E. 551); Middlebrooks v. Phillips, 39 Ga. App. 263 ( 146 S.E. 653); Powell v. Davis, 60 Ga. 70 (1); Warthen v. Melton, 132 Ga. 113 (4) ( 63 S.E. 832). In the following cases a release was taken from one joint tort-feasor and it was held that the other tort-feasor was released: Edmondson v. Hancock, 40 Ga. App. 587 ( 151 S.E. 114); Caplan v. Caplan, 62 Ga. App. 577 ( 9 S.E.2d 96); Donaldson v. Carmichael, 102 Ga. 40, 42 ( 29 S.E. 135).
What was the significance at common law of a covenant not to sue and which the codifiers of the Code of 1863 evidently meant to retain? In 8 Bacon's Abridgment, p. 249, it is stated: "If two are jointly and severally bound in an obligation, and the obligee by deed (a) covenants and agrees not to sue one of them; this is no release, and he may notwithstanding sue the other." In Garnett v. Macon, 2 Brockenbrough 185, being a collection of cases decided by Chief Justice Marshall of the Supreme Court of the United States while presiding in the Circuit Court of the United States for District of Virginia and North Carolina, it was said: "I think the proposition may be stated, without fear of its being disproved by the books, that a covenant containing no words of release, has never been construed as a release, unless it gave to the party claiming that construction, a right of action, which would precisely countervail that to which he was liable; and unless, also, it was the intention of the parties that the last instrument would defeat the first." On page 223 the Chief Justice refers to Hutton v. Eyre, 6 Taunton 289, where the defendant, one of two partners, executed an assignment of all his property to trustees for the benefit of his creditors, in consideration of which the creditors covenanted and agreed with the debtor not to sue him on account of any debt due to them from him, and quotes with approval from Lord Chief Justice Gibbs, who delivered the opinion in the Hutton case, as follows: "We must look at the principle on which the rule has been applied, that a covenant not to sue shall operate as a release. Now, where there is only A on one side, and B on the other, the intention of the covenant by A not to sue B, must be taken to mean a release to B, who is accordingly absolutely discharged from the debt which A undertakes never to put in suit against him. The application, therefore, of the principle in that case, not only acts in prevention of the circuity of action, but falls in with the clear intention of the parties; but, in a case like the present, it is impossible to contend that, by a covenant not to sue the defendant, it was the intention of the covenantors to release the plaintiff who was able to pay what his partner might be deficient in. It would have been an easier and a shorter method to have given a release than to make this covenant. The only reason, therefore, for their adopting this course, was, that they did not choose to execute a release to the defendant, because that would also have operated as a release to the plaintiff, whereas they considered that a bare covenant not to sue the defendant, would not extend to his partner; as, therefore, the terms of the covenant do not require such a construction, and as such construction would be manifestly against the intention of the parties, we are decidedly of opinion that it ought not to be permitted so to operate. " Chief Justice Marshall comments: "That this was not a joint obligation, but a joint assumpsit, constitutes, I think, no difference in the cases."
In Kendrick v. O'Neil, 48 Ga. 631, the Supreme Court had under consideration the legal effect of a certain receipt which was executed by a creditor through his agent to a member of a partnership and reciting that in consideration of a named sum paid by the partner the creditor did "hereby covenant and agree that the other partners shall and will duly pay the balance due on said obligation, without further cost or detriment to said" partner. In this case the court examined a code section which is now § 20-909, and, while ruling that the instrument was not a covenant not to sue and was not a release, entered into a discussion of the legal effect of a covenant not to sue. Since, however, the writing there under consideration was not a covenant not to sue, what was there said as to the legal effect of such a covenant was obiter and is not binding upon this court. We nevertheless avail ourselves of the examination made by the court as to the legal effect of such a covenant at common law, from which it is apparent from the quotation by it from Garnett v. Macon, which we have set out hereinbefore, and other citations, that a covenant not to sue, executed to one of two or more joint tort-feasors, is not a release as to the others and does not bar a proceeding against them. There is no precise ruling by the Supreme Court of this State on the question here presented, but in Georgia Railroad Co. v. Roy, 147 Ga. 349 ( 94 S.E. 218), there is an implication that had the question been ruled on the Supreme Court would have held as we do here. The employer of one killed by a railroad obtained an express release from the plaintiff. In a suit against the railroad, discharge was pleaded on the ground that the plaintiff had executed a release to the employer as a joint tort-feasor. The plaintiff applied to the employer for a voluntary reformation of the instrument into a covenant not to sue. The contract was thus reformed and pleaded in the city court and the plea was rejected. At that stage of the litigation the plaintiff sought in the superior court to enjoin the defendant from interposing the alleged release as a defense in the city court for reformation in accordance with the voluntary reformation by the employer, and that the controversy pending in the city court be tried and determined in the superior court, and that plaintiff have judgment. The Supreme Court, in holding that there was nothing for a court of equity to do, said: "The primary purpose of the equitable proceeding is to reform the release. Without this it is manifest, and indeed must be conceded, that the suit would be barren and purposeless; for in other respects it can be tried as favorably to the plaintiff in the tribunal first selected as in the last. Without reformation the paper would be as fatal to the recovery in the one court as in the other; and therefore, unless the reformation can be had, there is no basis for the equitable jurisdiction of the superior court. The paper having been voluntarily reformed already in accordance with the original intention of the parties, a court of equity could do no more than has been done." It is clear that the Supreme Court was of the opinion that as a release the instrument would bar a proceeding against the remaining joint tort-feasor, but that as reformed into a covenant not to sue it would not do so. It must be observed that the court was addressing itself to the instrument sought to be reformed in equity and as it was when the defendants contended it was a release to a joint tort-feasor. The court, apparently without considering that the employer was other than a tort-feasor, decided that voluntary reformation having taken place no reformation in equity was needed. Had it been considering the instrument as reformed, wherein it was shown that the payment made by the employer was a mere gratuity, it would doubtless have held that such gratuity could not be pleaded in reduction of the amount of the recovery. See Nashville, Chattanooga c. Ry. Co. v. Miller, 120 Ga. 453 ( 47 S.E. 959, 67 L.R.A. 87, 1 Ann. Cas. 210); Western Atlantic R. Co. v. Sellers, 15 Ga. App. 369 ( 83 S.E. 445). Nevertheless, as written there is an implication that the court regarded a payment by one of two joint tort-feasors as one which could be pleaded in reduction of the amount of damages in a suit against the other tort-feasor.
In Roy v. Georgia Railroad Bkg. Co., 24 Ga. App. 86 ( 100 S.E. 46), the same case was before this court, involving, among other things, the legal effect of the covenant not to sue, and it was held, without citation of any precise authority, that "A covenant not to sue one jointly liable will not serve to release any one other than the one with whom the covenant not to sue is entered into." However, the opinion took note of the proceedings in the Supreme Court as reported in 147 Ga. 349, supra, and what was there said was doubtless the basis of the ruling of this court. In any event the ruling expresses the legal significance of a covenant not to sue as is to be found in the common law to which we have referred to determine the meaning of "equivalent to a release" in the Code, § 20-909.
In Moore v. Smith, 78 Ga. App. 49 ( 50 S.E.2d 219), it was held: "The release from liability, for a consideration, of one of two defendants sued jointly releases the other, for there can be but one satisfaction of the same claim for damage or injury; but, to the contrary, where as here, the clear intendment of the agreement between the plaintiff and the dismissed defendant is but a covenant not to sue and not an accord and satisfaction of the claim itself, the other defendant is not released." This ruling was apparently induced by what was said in the Kendrick case, supra, quoted in the Moore case, and which was obiter as to a covenant not to sue, but it nevertheless states a sound principle of law in view of what an examination of the common law shows the legal effect of a covenant not to sue to be. See also, as showing the weight of authority to the effect that a covenant not to sue one of two joint tort-feasors is not a release of the other: Annotations in 50 A.L.R. 1081; 53 A.L.R. 1461; 66 A.L.R. 212; 124 A.L.R. 1309; 148 A.L.R. 1288.
It is clear that under the common law a covenant not to sue is different in legal effect from a release, in that where executed to one of two joint tort-feasors it does not release the other, though as to the first it leaves him in as good a position as to ultimate freedom from liability as if he had been expressly released. Such a meaning must be given to the language in the Code, § 20-909, "A covenant never to sue is equivalent to a release." The court did not err in sustaining the demurrer to paragraph 31 of the defendants' amendment to their plea and answer that the instrument executed to the taxicab driver constituted a release to the other joint tort-feasors.
The assignment of error on the judgment sustaining the demurrer to paragraph 30 of the defendants' amendment to their plea and answer, seeking to have the sum of $4000 paid by or on behalf of the taxicab driver applied in mitigation of the plaintiff's damages, raises the question whether or not, though the instrument here involved not be a release, the plaintiff may recover from the defendants the full amount of her damage or suffer a reduction to the extent of the $4000. The only ruling by the appellate courts of this State seems to be that in Moore v. Smith, supra, a negligence case, where it was held that "there is no obligation to credit the payment so made by one of the joint wrongdoers against the recovery had from the other wrongdoer." It is clear, however, that such a question was not raised in that case, the only issue in connection with the execution of the instrument under consideration being whether or not it constituted a release of the other alleged tort-feasor. Consequently the ruling that a payment by one of two joint tort-feasors could not be pleaded in mitigation of damages is not binding upon us. In the Moore case the obiter ruling was arrived at by reasoning that the asserted liability never became a joint obligation by a judgment. We prefer now to base our ruling on the just principle that there should be but one satisfaction of a single injury. Stated otherwise, in a tort action, compensation, and not enrichment, is the basis for the award of damages. This principle of single satisfaction has been enunciated heretofore in cases where releases were involved, and it would seem to be no less applicable where, after receiving a given sum from one joint tort-feasor, and executing a covenant not to sue, the injured party proceeds against the remaining joint tort-feasor. In such a case the amount of damages should be reduced pro tanto. In Donaldson v. Carmichael, 102 Ga. 40, 42 ( 29 S.E. 135), it was said: "The universal and cardinal principle is, that the person injured shall receive a compensation commensurate with his loss or injury, and no more. 1 Sutherland on Damages, p. 27. This rule of course will be understood as not intended to embrace cases in which punitive or vindictive damages may be awarded, but as stating primarily the main object for which damages are awarded. The cause of action is the damage occasioned by the wrongful or negligent act of the defendant; if the act be done without damage, there is no injury to compensate; hence there can be no recovery. If there was damage by such act and the amount of such damage has been agreed on and paid, then it has been compensated. Although one be damaged by the joint act of two persons, there is but one injury; and if that is satisfied, the party injured is placed in as near his normal condition as the law can place him. There can be no double recovery of the amount of damage which one has sustained. It would be as reasonable to ask to recover from one defendant twice the amount of the damage sustained, as it is to ask from each of two defendants payment of the full amount of such damage even when the cause of action is good against both. The plaintiff is entitled to only one satisfaction; and if the manner of releasing one involves satisfaction in whole or in part of the claim, it will enure to the discharge, pro tanto, of all who are liable [citing]; and if a party injured accept satisfaction from one of several joint tort-feasors, that is a bar as to all. . . Even if separate suits are brought against several who are guilty of a joint trespass, while each is liable for what has been done and may be separately pursued to final judgment, the plaintiff may elect which of the separate judgments he will enforce, but having received his damage recovered against any one, and his costs against all, he must be content with that; otherwise, he must receive more than one satisfaction for his injury." In a Georgia case, In re Kimbrough-Veasey Co., 292 Fed. 757, 758, Judge Sibley, after holding that in a mere agreement or covenant not to sue one debtor there is no discharge of the others, said "By the weight of authority, however, since the creditor is entitled to but one satisfaction, no matter how many persons may be bound to render it to him, any payment so made must be credited as against the other coobligors. In the case of a principal and surety, however, though they are for many purposes joint obligors as respects the creditor ( Lumpkin v. Calloway, 101 Ga. 226, 28 S.E. 622), as between themselves it is quite otherwise."
In 45 Am. Jur. p. 676, § 4, it is stated: "An injured person can have but one satisfaction for his injuries; and therefore the amount paid by the tort-feasor in whose favor the covenant not to sue was given will be regarded as a satisfaction pro tanto as to the joint tort-feasors." See also 53 C. J. 1253, § 76; Annotations in 104 A.L.R. 932, showing weight of authority to be to this effect.
It follows from the above that the court erred in sustaining the demurrer to paragraph 30 of the amendment to the defendants' plea and answer.
Counsel for the defendant in error call attention to the fact that the instrument executed by the plaintiff expressly stated that "This covenant not to sue is executed by the guardian on behalf of his ward, not in satisfaction of any damage sustained nor as compensation for injuries, nor in settlement of any claim for damages, and said money is paid and accepted as the consideration for the covenant not to sue the parties or either of them to whom the covenant flows." From this it is argued that it was not the intention of the plaintiff to receive the money as compensation for any damages. However, the instrument first recites that the plaintiff, through her guardian, contracted not to bring any legal action or proceeding "for or on account of any injury or damage Janice Irene Ouzts may have sustained by virtue of or arising out of a collision" involved in the present action. Hence, despite the protestation above quoted, and though we recognize that this was an instance of one "buying his peace," the cold fact remains that the injury provoked the payment of the $4000, and that without it no such payment would have been made. Whatever terminology may have been used in the instrument we can not shut our eyes to the fact that the plaintiff has received this $4000 only because of her injury and damage and should not be permitted to collect it twice.
3. Under the evidence, jury questions were presented (a) as to whether or not the train was being operated within the City of Thomasville in excess of 20 miles per hour in violation of a city ordinance limiting the speed to that rate, which violation would be negligence per se; (b) as to whether or not after seeing the perilous position in which the plaintiff was placed as a passenger in the taxicab the engineer checked the speed of the train or made an effort to do so to avoid hitting the taxicab; and (c) as to whether or not the taxicab driver was negligent in attempting to cross the tracks with the train approaching and seen by him, and in following another car without maintaining an interval of distance sufficient to enable him to pass to the left or to the right of the other car if safety of his passenger so required. Whether or not the proximate cause of the plaintiff's injury was the negligence of the defendants or that of the taxicab driver or the concurring negligence of both in producing the plaintiff's injury was for the determination of the jury. These principles of law are established by the authorities we have cited in division 1 of this opinion as to the sufficiency of the petition as amended. Under the law and the evidence the jury was authorized to return a verdict in favor of the plaintiff, and the general grounds of the motion for new trial are without merit. Since, however, the result of the error of the court in sustaining the demurrer to paragraph 30 of the defendants' amendment to their plea and answer was that the jury, in fixing the amount of the plaintiff's damages, necessarily did not take into consideration the sum of $4000 which the plaintiff apparently concedes was paid by or on behalf of the taxicab driver, who might reasonably have been found by the jury to have been a joint tort-feasor, direction is given that this amount of $4000 be written off the verdict for $40,000.
4. Special grounds 1 and 4 of the amended motion for new trial are not argued or insisted upon in the brief of counsel and must be treated as abandoned.
In special ground 2 error is assigned on the following charge of the court: "Gentlemen, damages are given as compensation for injuries done. Elements of damage where there is physical injury are pain and suffering, physical and mental, past and future, continuing injury to health and other physical conditions; loss of capacity to make a living." It is contended that the charge was error for the following reasons: (a) It was misleading and confusing to the jury because it authorized them to consider elements of damage twice or render a verdict for double damages. (b) The charge was erroneous as an abstract principle of law. (c) It was not elsewhere corrected in the charge of the court. In special ground 3 exception is taken to the following charge of the court: "The guide for fixing damages, if any, for pain and suffering, or diminished capacity to labor, as distinguished from earning capacity, is the enlightened consciences of impartial jurors, acting under the sanctity of their oath." It is contended that the charge was error for the following reasons: (a) It was misleading and confusing to the jury because it authorized them to consider elements of damage not authorized under the pleadings and evidence. (b) The charge, in conjunction with the charge herein above set out, authorized the jury to return a verdict for loss of earning capacity, which said element of damages was not contained in either the pleadings or evidence. (c) The charge was not elsewhere corrected in the charge of the court.
These two grounds were argued together in the brief of counsel and may appropriately be so considered here. The basis of the objection is that the court charged the jury as to recovery for loss of earnings as an element of pain and suffering when such question was not involved in the pleadings or evidence. Counsel for the plaintiff in error concede that the loss of capacity to labor is an element of pain and suffering, the guide for the measurement of damages being only the enlightened consciences of impartial jurors, but that to authorize recovery for loss of earnings there must be some evidence of earnings before and after the injury, and that being absent here the charge was unauthorized and harmful error. We can not subscribe to the argument of counsel that the court's charges were harmful and confusing to the jury. While the first excerpt contained the expression "loss of capacity to make a living," the second excerpt shows plainly that it was instructing the jury as to diminished capacity to labor "as distinguished from earning capacity," and the court correctly stated that the guide for the measurement of damages is the enlightened consciences of impartial jurors, acting under the sanctity of their oath. This guide could not, of course, relate to loss of earning capacity. Manifestly the jurors could not reasonably be said to have received the impression that the court was instructing them that the plaintiff here, whom the evidence showed to be an eleven-year-old girl, was by her guardian seeking damages on account of loss of earnings. In West v. Moore, 44 Ga. App. 214 (2) ( 160 S.E. 811), is to be found a good statement of the difference between the award of damages because of loss of capacity to labor and the award of damages on account of pecuniary losses or of "earning capacity." It was there said: "In an action for personal injuries, permanent diminution of capacity to labor is an element of damages for consideration by the jury in determining the amount of the recovery, along with evidence as to pain, suffering, disfigurement, or the like, though no pecuniary loss be shown ( Powell v. Augusta c. Ry. Co., supra [ 77 Ga. 192, 200]; City Council of Augusta v. Owens, 111 Ga. 464 (8), 479, 36 S.E. 830; Atlanta Street R. Co v. Jacobs, 88 Ga. 647, 652, 15 S.E. 825), since mental pain and suffering may follow from a consciousness of the existence of a permanently impaired capacity to labor, and for the measurement of such element of damages there is no standard but the enlightened consciences of impartial jurors. But, `if a plaintiff seeks to recover for pecuniary losses resulting from lost time or permanent diminution of capacity to labor and earn money, he should introduce evidence on which to predicate such a recovery.' Atlanta West Point R. Co. v. Haralson 133 Ga. 231 (4), 235 ( 65 S.E. 437)." The charges here were not subject to any of the criticism of the motion.
Nothing herein stated is to be taken as indicating an opinion that the loss of capacity to "make a living" is different in law from the loss of capacity "to labor," as is usually referred to as being an element of pain and suffering rather than loss of earnings requiring proof. We merely hold that if there be a distinction in meaning, the jury could not, where as here an eleven-year-old child was involved, have reasonably understood the court to be referring to loss of earnings, rather than to loss of capacity to labor, as pointed out in the second excerpt, where no proof of earnings is required.
For reasons stated in division 3 of this opinion, direction is given that the sum of $4000 be written off the verdict for $40,000; otherwise, the judgment stands reversed.
Judgment affirmed in part and reversed in part with direction. MacIntyre, P. J., and Townsend, J., concur.