Mrs. Roach, the widow of a locomotive engineer on the Central Railroad, in charge of the engine on one of three freight trains thereon, running at night, sued the railroad company for the homicide of her husband ; the jury found for her $5,000.00 damages, the company made a motion for a new trial on various grounds, it was overruled on all, and the company excepted to the judgment overruling its motion.
We think that the motion should have been granted on some of the grounds therein stated.
1. The first ground is that the court declined to give in charge the following request: “ If the jury be satisfied that the plaintiff’s husband was himself wholly without fault or negligence in connection with the incidents, or any one of them, which directly contributed to the cause of his death; and should be further satisfied that by no effort of his own could he have avoided the loss of his life, but should find on the other hand that the company was not guilty of negligence, or of failure in the discharge of ordinary duty by the defendant, or either of its employés, which caused his death, still the plaintiff cannot recover.”
Two things are essential to enable the plaintiff to recover. First, no fault on the part of her husband contributing to the occasion or cause of his death, and secondly, negligence or fault in the company, or some other agent or employé thereof, which did so contribute. The plaintiff’s husband may not have at all been at fault, and yet she cannot recover unless the company, through other employés, was at *640fault. Such a case would be an unavoidable accident — with nobody to blame, and, therefore, no recoverable damage to anybody. It is true that the moment the plaintiff’s husband is shown without fault, the presumption is that the company was at fault through other employes; but this may be rebutted, and it is for the jury to say whether it is or is not rebutted. Therefore, it is for them to say on the whole case made by all the proof that plaintiff’s husband is without fault, and that the company is at fault; and they must say that both things are true, before the plaintiff can recover. The request is awkwardly worded, but it means that these two things must concur before there can be a recovery; and so understanding it we think that it or its substance should have been given to the jury. Although something akin to its substance, as we understand it, was given in the general charge, yet as the judge told the jury that he declined to give this, they may have been misled. Code, §§2962, 3036, 3033.
2. In regard to the fault of the plaintiff’s husband and the refusal to charge thereon, as requested in the second ground of the motion, in relation to his jumping from the engine, and the remarks .of the judge thereon, we think there was error.
Whilst abstractly speaking an old man has the right to jump as well as a young man, yet we hardly think that the judge ought to have said to the jury that he had such a right, and “that the fact that he jumped is proof that he thought jumping the safest course.” Such remarks would seem to intimate an opinion on the evidence and may have been so understood. The prudence of jumping or not jumping- — -whether it put the engineer in fault or not — depends much on his ability to jump, and the safety with which he could jump, and the imminence of the danger threatening at the time. All these are matters for the jury to pass upon without intimations from the court, and if permitted, even to be made it is hardly reasonable to say or intimate that an old man of sixty years of age could safely jump where a young man of twenty might do so with ease *641and safety. Moreover, a passenger might be justifiable in jumping from a train, when an engineer would not be in abandoning his engine. The passenger has only himself to care for; the engineer has lives and property of others at stake. The first is unskilled in the running of cars and the imminence of the danger; the other should know from experience of the risk of collisions from the distance between trains in danger of colliding; and what would be no fault in the passenger might be grave error in the officer of the company. All these are matters for the jury to consider without let or hindrance or intimations from the bench. We do not rule that the engineer must never leave his engine; but he must be sure that an emergency is upon him —imminent and impending — before it can be said that he is without fault in doing so. In this case had he not left the engine, he would now be alive; was it prudent in him, under all the facts as an officer — a man of the years he had attained — with the distance between trains — with the danger to remain, and the danger to leap — all considered, was it prudent to risk the leap % and was he without fault in doing so ? The jury must answer without intimations of opinion from the court.
3. The measure of damages first given by the court is as follows: “ First determine what amount per annum you will give the plaintiff, then calculate the present worth of that amount for each year separately, add their present worths together, and find the aggregate amount in solido. This you must do for the number of years you find under the testimony that Roach would have lived but for the accident.”
After the jury had retired, that body was recalled, and the following charge was given : “ The pecuniary damages to the wife from the homicide are to be ascertained by inquiring what would be a reasonable support, according to the circumstances in life of the husband as they existed at his death, and as they may be reasonably expected to exist in view of his character, habits, occupation and prospects *642in life, and when the annual money value, of that support has been found, to give as damages its present worth, according to the expectation of the life of deceased, as ascertained by the mortuary tables of. well established reputation.”
The judge certifies that this was in lieu of that previously given. If so, it being the rule laid down in 38 Ga., 410, and the jury being told that this was in lieu of that first given, it -would be clearly wrong, we think, to reverse the judge for giving in charge the rule prescribed by this court. Yet in this case the attention of the jury should be called to the declining years of the plaintiff’s husband, and the apparent decrease year by year of capacity to labor, especially in his business of a locomotive engineer. It is true that this idea may be conveyed by the words “prospects in life” in the rule given in the 38th Ga.; but in a case where the plaintiff’s husband’s capacity to support her is dependent on his business, which business requires vigor of bone and muscle, and where he was some sixty years old when killed, and the expectation of life was to run to seventy-three years of age, and where, therefore, it is hardly reasonable to calculate that he could be similarly employed and equally paid as to wages, the rule should be expounded and amplified with some more particularity than merely to read it from the report of that opinion.
4. We lay the more stress upon this point for the reason that complaint is made that the damages are excessive. As the case is to be tried again, we are loth to express an opinion thereon further than to say that the declining age of the plaintiff’s husband, and consequent incapacity to labor long as a locomotive engineer, especially on a night train, and his consequent insecurity to be continued for a long time in that employment, ought to be weighed and considered well by the jury. It is the support which he could have probably made for her for the remainder of his life — strength and consequent ability all the while decreasing — it is that support only which is the basis on which she *643is entitled to rest a recovery against the company,, if their agents killed him by their neglect when he was without fault; and therefore the pith of the case is his prospects to continue in that or other business and thus make her this support.
5. In respect to the question of negligence by the company’s agent — the locomotive engineer on the train in front of that run hy the plaintiff’s husband — we think that it does not depend on the incapacity by the reason of fits or otherwise of that engineer, but on the fact whether or not he was negligent that night. If he stopped at that curve without good reason when he could have gone on, and by reason of his stopping there without good cause the accident happened, he was at fault and not reasonably diligent but negligent, and plaintiff, if he did not himself by his own fault, by jumping without good reason under all the circumstances from his place on the engine, contribute to the injury might recover if hurt, and so may his widow if he was killed.
The case, we consider on the broad view of it as a whole, has not been as fully tried and the damages as clearly ascertained by the jury as should have been done, or rather as might be done on a new hearing, and therefore a new trial is awarded.
Judgment reversed.