The plaintiff below, a boy nine years of age, obtained a verdict for $10,000, for personal injuries received on a public street crossing in the city of Atlanta, by reason of being thrown down and run over by the cars of the railway company, his chief injury being the loss of his right arm, which had to be amputated above the elbow. The company moved for a new trial, upon forty grounds, all of which -were overruled.
1. The last ground of the motion complains of the charge of the court to the effect that the jury might, in their discretion, award -upon discretionary damages, further damages in the- nature of interest computed at seven per cent, from the date of the injury to the time of trial. This instruction -was error. There is no authority of law for treating the jury as clothed with a double discretion, a discretion to be exercised, first, in fixing the amount of the plaintiff’s damages, and then in augmenting that amount by an assessment in the nature of interest for detention of the money, or delay of payment. As long as the principal sum was not only unascertained, but unascertainable save by the enlightened conscience of impartial jurors, the law neither appointed a day of payment nor exacted any tender.
The privilege of tendering by guess, given by statute in section 3056 of the code, is not granted as a resource to shun or stop interest, but to avoid cost. As far back as 1799, we have statutory evidence adverse to the pol
2. The cars which hurt the boy were being switched, in the heart of the city, from the premises of one railroad company to those of another. They were running backwa’rds. The boy was passing along a street which divided the premises of the one company from those of the other, and which crossed eight parallel tracks. He was upon the sidewalk. His diligence in looking out for danger was and is a main point in the merits of the litigation. The court charged (24th ground of the motion) that “ ordinary diligence is that degree of care and attention which ordinarily reasonable and prudent persons would use under the same or similar circumstances. If the plaintiff was a child of tende'r years, it would be that degree of care and attention which a child of average powers and capacity, of the same age, would use under the same or similar circumstances.” . The objections to this charge, as indicated in the motion, are that the court should have used “men” instead of “ persons,” and that it was otherwise illegal. We do not go' back to the reported eases to see whether the care of “ ordinarily reasonable and prudent persons ”, is equivalent to. the care of “every prudent person,” but we suggest that''"' the standard of ordinary care, under our law, is the care of every prudent man, and not of the average or ordinary prudent man or person. In Beach on Contributory Negligence, §9, p. 23, mention is made of the ideal average prudent man, whose conduct theoretically is a
But conceding that average may serve as a standard in adults, it will not follow that a like standard should have recognition as to children Could we assume an ideal constant as to the former, who that knows how precocious are some children and how backward are others, would carry the assumption down to childhood and apply it to children ?/Capacity (which includes personal experience as weíl as natural gifts) is the main thing. Age is of no significance except as a mark or sign of capacity. Some of the decisions mention age. only, but most of them couple capacity with it. As specimens, see Lynch vs. Nurdin, 1 Ad. & El., N. S. 29; Railroad Company vs. Gladman, 15 Wall. 401; Railroad Company vs. Stout, 17 Ib. 657; Munn vs. Reed, 4 Allen, 431; Railway Company vs. Crenshaw, 65 Alabama 566; Byrne vs. Railroad Company, 83 N. Y. 620; Plumley vs. Birch, 124 Mass. 57; Dowd vs. Chicopee, 116 Mass. 93; Lynch vs. Smith, 104 Mass. 52. The study of these and other like liases will lead to two conclusions : first, that no court can hold that childhood and manhood are bound to observe the same degree of diligence ; secondly, that while the name ordinary care is frequently applied to the diligence exacted by law of a
3. As to the charge of the court touching negligence as matter of law, the application of the statute and of the city ordinance, the duty to ring the bell and hold trains in cheek so as to stop them at street crossings, the duty to comply with the ordinance as to the speed of trains not stopped, and as to keeping watchmen or flagmen at certain crossings, and as to responsibility of the railroad companies for inattention or negligence by such flagmen or watchmen, (in respect to all which, see 25th, 26th, 28th, 31st, 33d, 35th grounds of the mo-4 tion,) we have little fault'to find. On these subjects we merely refer to cases already adjudicated. Atlanta & West Point Railroad vs. Wyly, 65 Ga. 120; Central Railroad vs. Smith, 78 Ga. 694; Georgia Railroad vs. Carr, 73 Ga. 557; W. & A. R. R. vs. Meigs, 74 Ga. 857; Central Railroad vs. Russell, 75 Ga. 810. "We see no reason to doubt that a city which is the terminus of numerous connecting railways which interchange business within
We will add that the style of the charge touching the city ordinances, was too absoluto and unconditional, in treating them as law, without any reference to the jury of the question of fact as to whether there were such ordinances before them, and perhaps as to whether they were reasonable. The manner of dealing with the subject in the Central Railroad vs. Smith, supra, was more satisfactory, save that the ordinance involved in -.that case was not applicable to the facts.
4. On the measure of damages, see the 4th head-note. 'We think the court laid down substantially the correct rule in the 38th ground of the motion for a new trial, and in that part of the 40th ground preceding the instruction relating to the discretion of the jury in allowing interest. We regard what is complained of in the 36th ground of the motion as subject to just criticism, and we think it a sound direction to give, that this part of the charge be omitted on a future trial. A brief but
The court erred in not granting a new trial, more especially upon the 40th ground of the motion. But we put the reversal of the judgment upon the whole case, and think its merits should be investigated anew, in the light of this opinion. As to grounds of the motion which we have not referred to, we regard them as free from substantial error.
Judgment reversed.