1. The court did not err in overruling the demurrers, general and special, to the amended petition.
2. The court did not err in admitting in evidence the Carlisle mortality and annuity tables; or in submitting to the jury the question of fact whether under the evidence the plaintiff's injuries had permanently impaired his earning capacity.
3. Where a number of persons habitually, with the knowledge and without the disapproval of a railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who are aware of the custom, are bound on a given occasion to anticipate that persons may be upon the tracks at this point; but it is not their duty to take such precautions as would prevent injury to such persons. Their duty is merely to take such precautions to prevent such an injury as ordinary care and diligence would require.
DECIDED MARCH 14, 1942. ADHERED TO ON REHEARING, APRIL 3, 1942. C. R. Hemmings (hereinafter referred to as the plaintiff) sued the defendant railroad company (hereinafter called the defendant) for damages alleged to have been caused by the infliction of personal injuries upon him and injury to his automobile *Page 882 in a collision, on a private railroad crossing, between a train of the defendant and the plaintiff's truck driven by him. The demurrers, general and special, to the amended petition were overruled, and exceptions were taken to that ruling. A verdict in favor of the plaintiff for $3000 was returned, the defendant's motion for a new trial was overruled, and that judgment was assigned as error.
1. Certain paragraphs of the general demurrer attacked paragraphs 6(3) and 6(5) of the petition, and alleged that to charge the defendant with negligence, as alleged in those paragraphs, "would be to impose upon this defendant a duty which would constitute an undue burden on interstate commerce and would be in violation of paragraph 3 of section 8 of article 1 of the constitution of the United States, said paragraph providing among the powers of Congress the power to regulate commerce with foreign nations and among the several States and with the Indian tribes." The defendant also raised the same question in its answer, and alleged therein and in its bill of exceptions "that the decisions of the Supreme Court of this State, to the effect that it is for a jury to determine whether or not it is negligence on the part of the engineer of a railroad company to fail to reduce the speed of a train so as to prevent injury to persons or property that may happen to be on a crossing, whether a public or a private crossing, where the presence of the persons or property is to be anticipated, are unconstitutional, imposing an undue burden on and an unreasonable regulation of interstate commerce in violation" of the above-cited paragraph of the constitution of the United States. This case was transmitted to the Supreme Court and transferred by that court to this court, the Supreme Court holding that no constitutional question was presented, and that a decision by it was not "a law of the State" within the meaning of the above-cited constitutional provision.Atlanta West Point R. Co. v. Hemmings, 192 Ga. 724 (16 S.E.2d 537). In view of that decision and the decision of this court in Seaboard Air-Line Ry. Co. v. Benton, 43 Ga. App. 495 (5) (159 S.E. 717), we hold that those paragraphs of the general demurrer attempting to raise the above-stated constitutional question were properly overruled. The overruling of the other paragraphs of the general demurrer and of the special demurrers was not error.
2. Special ground 5 of the motion for new trial complains of *Page 883 the admission in evidence, over the defendant's objection, of Carlisle mortality and annuity tables as contained in the 70th Georgia Report, the objection being that no evidence had been introduced showing any permanent impairment of the plaintiff's condition or that his injuries would permanently impair his earning capacity. And special grounds 9 to 12 inclusive complain of certain excerpts from the charge relating to the alleged permanent impairment of the plaintiff's earning capacity. "In a suit for damages on account of personal injuries resulting from a tort, where the petition alleges that the ability of the plaintiff to earn money has been decreased, it is error for the judge to charge the jury on this element of damages, unless there is some evidence upon which the jury can base with reasonable certainty a finding as to the amount of such damages" (City ofAtlanta v. Feeney, 42 Ga. App. 135 (3), 155 S.E. 370), but where the plaintiff testifies as to his age, his occupation, his condition of health before and after his injury, his earning capacity when injured and afterwards, sufficient data are given to enable the jury to determine how long he will probably live and labor, and how much the pecuniary value of his life has been diminished by his injury. Southern Ry. Co. v. Petway, 7 Ga. App. 659 (2) (67 S.E. 886). In Macon Railway Light Co. v.Streyer, 123 Ga. 279 (3) (51 S.E. 342), where the plaintiff's injuries were inflicted about a year before the trial of the case, and where her sufferings had continued unabated up to the date of the trial, the court said: "The jury were authorized to infer that the plaintiff's injuries would be permanent, from the character of her suffering, and the length of time that it had continued up to the date of the trial; and hence it was not error to charge on the subject of permanent injuries. This is so though there was no direct and positive evidence that her injuries were in fact of a permanent character." To the same effect see Southern Ry. Co. v. Petway, supra, headnote 1.
In the instant case, the plaintiff was injured about five months before the trial, and, in respect to his injuries, he testified substantially as follows: "While jumping from my automobile on a railroad crossing I was struck in my back, right over my kidneys, by some part of the engine and knocked unconscious. I was carried in an ambulance to the hospital where I stayed about two weeks. My physician, Dr. McDonald, advised me to stay there longer, but *Page 884 I wanted to go home and was removed there where I stayed in bed thirty-seven days. My back and my kidney were injured. I have suffered bad ever since this happened. When I urinate, my water is nearly pure blood. It is still that way. When I urinate I pass pus and blood from my kidneys. My back was kept strapped and bandaged about sixty-five days. I still have to take medicines to ease my pains, and have to get up three or four times a night to ease my kidneys. When I lie on my back in bed I suffer. My back hurts so that nearly every night I have to get out of bed and stay up an hour or two. My suffering makes me nervous. I can't even hold a cup of coffee. My doctor is still treating me. Before the engine hit me I was in good health, with the exception of my hands which were crippled, and I worked every day. My business was buying and selling cattle. I paid cash for what I bought and sold for cash and didn't keep any books. I estimate that I averaged $10 gross a day for six days a week. Out of that amount I had to pay the expense of operating and repairing my truck and other incidentals. As a result of these injuries my earning capacity has been diminished two thirds, if not totally, because I can't drive a truck further than from my house to town, and I have to rest half a day then. Since this injury I have not been able to do any work and haven't made a penny. I am thirty-five years old."
Dr. McDonald testified that he had treated the plaintiff for his injuries while confined in the hospital and afterwards, and corroborated the plaintiff's testimony about the pus and blood in the plaintiff's urine. The doctor testified: "Of course, the exact locality or region that this blood came from I can't state, but the supposition is that it came from the kidney. I taped his back with adhesive tape on a number of occasions." The doctor further testified in substance as follows: "When I first examined the plaintiff, he had a bruise on his left shoulder and also over the small of his back on the left side — the left side of the spine — between the ribs and the hipbone. There was some swelling there and the bruise was red. It indicated that some object had struck him there. I prescribed for him while he was at the hospital and afterwards. He complained of headaches and about his back hurting and I gave him medicines to relieve his pains. About two weeks ago he was complaining of headache and nausea and I gave him codine. I knew the plaintiff before he was injured, and he *Page 885 was then in good physical condition, so far as I know. He was able to carry on his business as a cattle trader, so far as I know. Apparently he is not in as good condition now as he was before his injuries. He goes around on crutches, and is not able to work like he did before. As to what extent his earning capacity is diminished at the present time as the result of his injuries, I don't know exactly how to estimate. When I first examined him, the x-rays failed to show any bone injury, but x-rays won't show up a kidney or anything in it. If he had an injury of that kind it wouldn't show. The fact that he passed blood from his bladder shortly after his injury would indicate that there might have been a concussion or laceration of the kidney." The witness then testified that from the indications he saw when he first began treating the plaintiff, his "prognosis of the case was that he would get well in anywhere from a few weeks to a few months." The witness did not testify whether he had subsequently changed his prognosis or still adhered to it. However, conceding that the witness's testimony should be construed as meaning that in his opinion the plaintiff's injuries were not permanent, the jury were not obligated to accept that opinionative evidence as true. While they could have so accepted it, and have found from it and other evidence that the plaintiff's injuries were not permanent and that his earning capacity had not been permanently diminished, this court can not hold as a matter of law that, under the plaintiff's testimony and other evidence in the case, the jury were not authorized to find to the contrary. It is well-settled law that opinionative evidence is not binding upon a jury, but in their discretion can be accepted or rejected. The admission in evidence of the mortality and annuity tables was not error, nor was it error for the court to submit to the jury the determination of the question whether under the evidence the plaintiff's injuries had permanently impaired his capacity to earn money.
3. A special ground of the motion for new trial assigns as error the following excerpt from the charge of the court: "I charge you that when a number of persons habitually, with the knowledge of the railroad company and without its disapproval, use a private passageway for the purpose of crossing the tracks of the railroad company at a given point, the employees of the company in charge of one of its trains who are aware of the custom are bound upon a given occasion to anticipate that persons may be upon the tracks *Page 886 at this point and are under the duty to take such precautions as to prevent injury to such persons." The charge is complained of because it imposed "the absolute duty on the defendant to take such precautions as would prevent injury to persons who might be on the crossing as the defendant's train approached said crossing." Apparently the court was endeavoring to charge the language of the Supreme Court in Bullard v. Southern Ry. Co.,116 Ga. 644 (43 S.E. 39), and in W. A. R. Co. v.Michael, 175 Ga. 1 (6) (165 S.E. 37), and the language of this court in Wise v. Atlanta West Point R. Co., 61 Ga. App. 372 (6 S.E.2d 135). However, in each of those cases the language employed was that, under the stated circumstances, the employees of the company in charge of its train "are under a duty to take such precautions to prevent injury to such persons aswould meet the requirements of ordinary care and diligence." (Italics ours.) In our opinion the charge as given in the instant case imposed an absolute duty upon the defendant to take such precautions as would prevent injury to persons who might be on the railroad crossing, and therefore was reversible error. This is true although the court had previously charged that the duty of said employees of the defendant in approaching the crossing was to exercise ordinary care and diligence. After the erroneous charge was given the court did not repeat its instruction that the duty of the employees of the defendant in approaching the crossing was to exercise ordinary care and diligence. So that the last instruction on this vital subject given to the jury was the erroneous one; and, since the evidence relied upon to establish the defendant's liability was exceedingly weak, this court can not hold that the charge was harmless. "Where an erroneous charge on a material issue is of such a nature as is calculated to confuse or mislead the jury, a new trial will be granted, notwithstanding the correct rule may have been announced in another portion of the charge. W. A. R. Co. v. Clark,117 Ga. 548 (44 S.E. 1)." Tietjen v. Meldrim, 169 Ga. 678,696 (151 S.E. 349); Kelly v. Locke, 186 Ga. 620, 627 (198 S.E. 754); Central of Ga. Ry. Co. v. Deas, 22 Ga. App. 629 (2) (179 S.E. 128). In the Cain case, headnote 2 reads as follows: "The duty which rests upon the occupant of premises as respects persons lawfully coming upon the premises is to exercise ordinary care to keep the premises *Page 887 safe. Upon the trial of a suit for damages by a customer against the occupant of premises, to recover for personal injuries alleged to have been received by the plaintiff while in the store, a charge of the court that if the jury should believe that at the time the plaintiff was injured the floor was not in a reasonably safe condition for a person entering the store, and that the plaintiff entered the store and was injured, the plaintiff would be entitled to recover, if not barred by the plaintiff's failure to exercise ordinary care, is subject to the objection that it eliminated from the consideration of the jury any question as to the defendant's negligence as respects the maintenance of the condition of the floor. Since the evidence presented the issue of fact whether the defendant was negligent, the charge was error harmful to the defendant. The mere fact that the court elsewhere in the charge instructed the jury that the duty which rested upon the defendant was to exercise ordinary care to keep the premises safe does not cure the error in the charge excepted to. Morrison v. Dickey, 119 Ga. 698 (2) (46 S.E. 863); Gill v. Willingham, 156 Ga. 728 (4) (120 S.E. 108); LaGrange Ice c. Co. v. McManamy, 32 Ga. App. 195 (122 S.E. 708)."
The other special assignments of error are without merit; and the general grounds of the motion for new trial are not now passed upon.
Judgment reversed. MacIntyre and Gardner, JJ., concur.
ON REHEARING.