This action was brought by Mrs. Pittman, defendant in error, against the Georgia Railroad Company, for the death of her husband caused by the running of a switch engine and cars in the yard of the company. Pittman was an employé of the Western and Atlantic Railroad Company, and it was his duty as such employé to be in the yard of the Georgia Company to take the numbers of cars of the company he served, and report them at the office of the State or Western and Atlantic road. The jury returned a verdict of fifty-five hundred dollars, and on the refusal to grant a new trial by the court, the Georgia Company excepted, and assigns for error that refusal on the grounds taken in the motion for the new trial.
There are many grounds alleged in the motion, but they may be considered under three heads — refusal to charge written requests, erroneous charges and illegality and ex-cessiveness of the verdict.
1. The first request is, in effect, that the wife cannot recover the full value of her husband’s life, but there must be a deduction for what the husband, if alive, would have spent on himself, and also a deduction on account of his capacity to labor as age advanced; the second is, that the act of 1878, so far as it undertakes to give her more than the support, or its equivalent, which she would have derived from him alive, is unconstitutional; and the third is, tha'', in case the jury found applicable the doctrine of apportionment of damages, then damages would be diminished in proportion to the amount of default attributable to the husband.
*330The first and third' requests appear to us to be substantially covered in the general charge. It is complained that the first is modified too much, because.it is alleged that the judge left it to the jury whether a person’s capacity to earn money and labor successfully would be diminished with old age. We are of the opinion that it does depend a good deal upon the character of labor and the expectation of life, whether that capacity would be diminished, and how much. So far as the plaintiff’s business of taking the numbers of cars, making a memorandum of them in a book and reporting it, is concerned, he would last longer probably than one in more active and harder physical labor would retain the capacity to work; and his trading capacity, which seems from the evidence to have increased his salary from the company he served, would also endure longer than the capacity for hard labor. It is very questionable, to say the most for the plaintiff in error, whether a better mode of settling such questions could be desired than by referring them to the jury, under the facts of each case, in respect to the calling and sort of labor the deceased followed. On this subject, the court said in the general charge: I further charge you, gentlemen, that, in making this calculation as to the amount plaintiff would be entitled to recover, . . . that you would have the right, and it would be proper for you to consider whether or not the capacity of the plaintiff’s husband to labor and earn money would have, by reason of advancing years, decreased, and if you believe under the evidence that it would have decreased in the same proportion as you believe his capacity to labor and earn money would have diminished, in the same proportion would it be proper and right that your verdict and finding would be diminishedand in another place, the judge repeated the instruction in these words: “ If you believe from the evidence that the capacity of plaintiff’s husband would have decreased by reason of advancing years, then it would be your duty to diminish the amount that you may find for the plaintiff.” It strikes us *331that the charge puts the point fairly before the jury under the facts of the case.
The third request is fully given in the general charge.
The second, relating to the unconstitutionally of the act of 1878, allowing the wife to recover the full value of her husband’s life, should not have been given. We see'noth-' ing unconstitutional or invalid in the act. And in construing it, the judge gave the full measure of its rights to the plaintiff in error in having the husband’s support, while living, deducted from the recovery.
2. The various charges excepted to in the 9th, 10th, 11th and 13th grounds are not set out in those grounds,but the 'errors assigned are criticisms upon, and deductions from, the general charge, wherein it deals with particular subject-matters. On comparing them with the general charge, we do not see that they amount to much. The distincton is clearly drawn between that negligence which, on the part of plaintiff’s husband, would defeat all recovery, and that which would only defeat it in part. In the one case, his negligence must have caused the disaster itself alone ; in the other, it did not alone cause it, but the company’s default, and his negligence, together did the work. In the first case, the judge instructed the jury that there could be no recovery; in the second, that there might be, but that it ■was the duty of the jury to diminish damages in proportion to the negligence of the husband. Substantially, •these views are clearly given to the jury., thus disposing of the criticism in the 9th ground.
In reference to the criticism in the 10th ground, it is well to let the charge speak for itself. The complaint is that the judge permitted the jury to go outside of the evidence in respect to duration of life, capacity to labor, etc. The court said, “ If you find it-your duty to find for the plaintiff, you will look to the evidence and determine from that how much you will find. You will, in arriving at a conclusion, look to the evidence as to the age of plaintiff’s husband, the probable length of his life, the amount that *332he earns or would probably earn during his life, and the state of his health.” We are unable to see a particle of justification for the criticism in this portion of the charge, and the plaintiff in error leaves us to hunt up the particular part criticised. This cannot be the part referred to. Perhaps it is another part, where the judge tells the jury that a book has been introduced to aid in calculations which they would make, wherein he told them that they need not confine themselves to that book, but said, “ You can use the rules in that book, or can take any other rules or information that you may possess, that refers to making calculations,” etc. Surely the jury, in making a calculation, may apply their knowledge or information of arithmetic without its being formally introduced in evidence. Nor can we find in a careful reading of the charge any just ground for the 10th ground.
In regard to the diligence of the respective parties, the court, it strikes us, was fair tc both parties, and there is nothing in the 11th criticism. As before remai’ked, we think that the charge does distinguish between negligence which caused and that which contributed only to the injury, and there is nothing in the 13th ground.
3. The error alleged in the 12th ground struck us with some force during the argument, but on examination of the whole charge, it disappears. The point made is that the court instructed the jury that if the officers of the company were at fault and the husband at fault, they “would be authorized to make such reasonable deduction, if you believe both parties were at fault, as you may see proper, from the amount of damages that you may find in the case.” The point is that the statute declares, Code, §3034, “ If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him;” and that therefore the court merely authorized the jury to do what the statute made imperative upon them.
*333But the full charge does tell the jury what the law is, a few paragraphs before this excepted to. It declares to them, “ If the complainant, and in this case the wife stands in the stead of the husband, so far as recovery is concerned; if the deceased in this case and the agents of the company are both at fault, the plaintiff may recover, but the damages shall be diminished by the jury in proportion to the amount of fault attributable to deceased. Now, gentlemen, apply this law to the evidence in the case. If you believe from the evidence that the injury to deceased was done by his own consent, or caused by his own negligence, then the plaintiff cannot recover. . Nor could the plaintiff recover, if the deceased could Lave avoided the consequences to himself by the exercise of ordinary care. But, gentlemen of the jury, if you believe, ” etc., concluding with the clause excepted to. So that the court laid down the law to the jury just as it is in the statute, and told them to apply it to the facts, and then concludes in the language usual among circuit judges, for fear of expressing or intimating an opinion on facts to the jury, “You would be authorized,” etc. Having given them the law, its imperative requirement, as their authority, the judge then adds, “You are authorized,” etc., meaning, of course, “You are authorized by. this law just given you.” We cannot see how it hurt plaintiff in error by any misconception which the jury could have had of this entire portion of the charge, taken altogether.
4. The fourteenth and fifteenth grounds attack the charge in respect to the measure of damages, because uncertain, and especially because the court dwelt on annuities, and did not call attention to the true mode of calculating the sum the widow should have in cash as .her recovery. It must be conceded that the charge is not so clear on this subject as is desirable; and the criticism of the very able counsel for the plaintiff in error is founded on more truth and strength than elsewhere in the .numerous exceptions *334taken. The charge on the subject is as follows: “ Now, gentlemen of the jury, as has been before stated, if yon shall find for the plaintiff, it would not be proper to find the amount that you may believe from the evidence that he earned each year, and then add those amounts together, and find a verdict for that sum, but it would be your duty to find the value of the annuity. That is to say, what sum paid to him now in cash would represent the yearly payments if the deceased had lived. You will perceive that any recovery that may be had would be paid now, and that you arrive at what sum you should pay him by first determining the length of time he would live, and this sum, as it would have been paid to his wife, as she would have been entitled to it yearly, it would be improper to give her the amount that you may find that he earned yearly added together. A book has been introduced in evidence to aid you in making a calculation, in order to find out the present value of the annuity. You can use the rules in that book, or you can take any other rules or information that you may possess, that refers to making calculations under the rules of law that I have given you, and from all the information, the best information you can command, find the present value of the annuity. As an illustration, and as an illustration only, if you believe from the evidence that the plaintiff is entitled to recover, suppose, for example, that she is entitled to recover on the basis of five hundred dollars, or one hundred dollars, say one hundred dollars, and yet if you find that the one hundred dollars would not be due, as an illustration, for five, eight or nine years, you should find an amount, its present value to date, as put at interest -would make the one hundred dollars at the end of five, eight or nine or any other num- ' ber of years you may believe from the evidence the husband of plaintiff would probably have lived.”
It will thus be seen that the charge on this subject is not very clear, but -the view of the court, as expressed, did not hurt the plaintiff in error. The confusion arises prin*335cipally from the use of the word annuity, rather than the sum which would produce it. It is that .sum for which the suit is brought, that the plaintiff below is entitled to recover. This sum is the value of the life of deceased, which, by the plain words of the act of 1878, Code, §2972, she is entitled to recover. Nor is it a mere life estate in that sum, but the fee, so to speak, the entire interest in it for her and her heirs, and not a sum whose principal is to-be exhausted at her death by encroachments upon it in the annual usufruct of its interest. The statute means the entire value of that life in plain and unmistakable words, and it was meant to remedy the rule formerly prescribed by this court that the family could only recover the value of the life to it; that is, the annual support they would get out of his labor; and on the suggestion of the confusion in the charge by Mr. Glenn on this point at its close, the judge laid down the rule of the statute, and the rule recognized by this court in The Savannah, Florida and Western Railroad, vs. Stewart, 71 Ga., 427, to-wit: “You will find the present value of the life of the plaintiff’s deceased husband, whatever you may believe from the evidence that is.” So that if the charge was confused before, it was confused to the detriment of the defendant in error, and was set right in the last sentence of the charge.
This disposes of the fourteenth, fifteenth and sixteenth grounds, leaving only the grounds that the verdict is contrary to the charge, the law and the evidence and is excessive.
5. It is supported by sufficient evidence to uphold it, endorsed as it is by the presiding judge. The conductor was absent and unaccounted for. The engineer failed to stop the train when the fireman cried out, “ look out! ” and jerked the bell. The brakeman did not tell him a man . was on the track, a car-length or two before the car which . was backing upon.him, and thus he was negligent of human • life. The agent and.servant of the plaintiff in error left' the man, who was killed soon after, drunk, as he thought *336and swore, without warning the engineer that he was in danger, though he did warn the deceased. If drunk, he should have been the more diligent in letting the engineer know of his being in danger; if sober, he.should have told that he was there, and in danger. More especially was this his duty, as he was' helping the deceased in business in which both were engaged, deceased being the servant and agent of another, and he the servant and agent of the plaintiff in error.
. Therefore, the presumption of negligence which the law attaches to the plaintiff in error, so far from being rebutted, was strengthened by the evidence.'
That there was contributory negligence on the part of deceased appears. Yet he was on duty, and in the line of his employment by the State Road, and on the track where the evidence shows he should have been, and there is nothing going to show that he saw or knew of the approach of the train. The strongest circumstance against him is the effort that the servant and agent of the plaintiff in error at work with him made, according to his testimony, to get him away, and the warning he gave that the train would come back on that track; but it was for the jury to criticise and scrutinize his testimony, and give it the credit they thought it entitled to, and his testimony about the drunkenness of the deceased really is subject to doubt, and contradicted by other witnesses, and casts a shadow on all he said on the stand.
The conclusion reached is that the evidence, and therefore the law, supports a verdict for the defendant in error.
Nor is the verdict excessive. The value of a husband’s life to his widow, with an expectancy of over twenty years longer life, and an annual income from his work of various sorts, approaching a thousand dollars, deducting from it such contributory negligence as the jury had the right to estimate and deduct, as well as the support of himself, and taking into consideration the effect of advancing age, which the court instructed the jury they should also deduct, is *337not excessive at fifty-five hundred dollars — at least, not so much so as would authorize this court to overrule the jury and court below in their estimate of it.
Judgment affirmed.