
    Atlanta and Richmond Air Line Railroad Company, plaintiff in error, vs. Henry H. Wood, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Railroads — Construction—Across Public Highway. — When a suit was brought against a railroad company for damages caused to the plaintiff by his falling into an excavation made by the company across the public highway, and it appeared in proof that the public highway had for years run in a particular place; that on the approach of the railroad constructors to that place, the road had been turned so as to take a different route; that within a week or ten days after the change, the plaintiff, traveling Jhe road with his wagon and team, had taken the old route, it being in th.e night, and had been stopped by the cut or excavation; that he had got out of his wagon to see what was the matter, and in passing to the front had fallen into the cut and broken his thigh, so as to cause him great pain, expense and loss of time, and so as to lessen his effectiveness as a working man one-fourth, for life, and so as to shorten his leg by three inches:
    Held, That the burden of showing that the route of the road had been legally changed, was upon the defendant, and this could only be shown by production of the order, or by proof of such long established usage as to justify a presumption of such order.
    2. Same — Measure of Damages. — The measure of damages in such a case is the actual injury suffered. This may include bodily and mental suffering. And when the Court added to this charge that the jury might include “the injury to his pride, his manhood:”
    Held, That whilst the latter language is not strictly accurate, yet, as the proof shows that the plaintiff was permanently deformed by being lamed for life, the jury may well have understood the Court, as referring by his words to this deformity, and as the verdict is not excessive, this Court will not disturb it.'
    3. Sufficiency of Evidence to Sustain Verdict. — The verdict is not contrary to the evidence so as to justify the interference of this Court.
    *4. Bill of Exceptions — Oral Evidence in Same — Judge’s Certificate. — Where the oral evidence is contained in the bill of exceptions, and the depositions are attached thereto as an exhibit, with a reference therein contained making them a part thereof, all of which is followed by the usual certificate of the Judge, the writ of error will not be dismissed. (See end of report. R.)
    Railroads. Roads. New trial. Damages. Charge of Court. Before Judge Hopkins. Fulton Superior Court. April Term, 1872.
    Wood brought case against the Atlanta and Richmond Air Line Railroad Company, for damages alleged to have been sustained by him by reason of its negligence. The defendant pleaded the general issue. The evidence made the following case:
    On the evening of the 21st of March, 1870, plaintiff left his home in Milton county, with his wagon, to which was attached two oxen and a mule, and started for the city of Atlanta. At about eight or nine o’clock in the night, he arrived at the place in DeKalb county where the public road, upon which he was traveling,- crossed the track of defendant. The night was dark and it was raining a little. Plaintiff knew nothing of the railroad cut being there, until the team stopped and refused to go, when he got out of his wagon and went to his mule, which he found had turned around. It was so dark that he could discern nothing but that the mule was in the bushes. He then retraced his steps around the wagon to the left side, to ascertain what was the matter, when he fell into a cut made by the employees of defendant. The cut was eight or nine feet deep, nearly perpendicular at the side, and nothing placed there to prevent plaintiff from falling in. His right thigh was broken by the fall. He dragged himself a short distance and halloed for some two or three hours, until some persons came to his assistance and carried him on some bed clothes to the house of Mrs. Stewart. Plaintiff discovered no obstructions across the public road before he reached the cut. His right leg, by reason of said injury, is three inches and three-quarters shorter than the left. Remained in bed six weeks. Paid for medical services $31 00. Post four *months from his farm. Had to hire a hand at $10 00 per month, for three and a half months. Suffered great pain and is still subject to severe suffering at times. Was in his twenty-eighth year at the time of the injury. Had a wife and a small child. The injury has deprived him of about one-fourth of his ability to work on a farm, which was his occupation. His services before the injury were reasonably worth $1 00 per day, since, not more than seventy-five cents. This difference has caused him to lose money, as the labor he has been enabled to do has not been sufficient to support his increasing family of children, now consisting of three, two girls and a boy.
    The defendant had made a crossing for the public travel over the railroad; there were two small sapplings and some brush placed in the old road as a guide to the new crossing. These obstructions were insufficient to place any one on guard at night. The new road led around-the cut into which plaintiff fell. The place where the plaintiff fell into the excavation was about twenty steps from the old road where it originally crossed the cut. The team was about twenty-five steps from the old road. The new road had been opened a week or two and had been used by the public, before the accident happened. It crossed the railroad track about one hundred feet from where the old road crossed before the excavation was made. It intersected with the old road about one hundred and twenty-five to one hundred and thirty feet from where it crossed the railroad. The road commissioners of DeKalb county notified defendant to keep up and in good order the crossing on the new road.
    The jury returned a verdict for the plaintiff for $4,20000. Whereupon, the defendant moved for a new trial upon the following grounds, to-wit:
    1st. Because the Court erred in charging the jury “that although a new road was opened and in use, if it was not legally established or adopted as the public highway, the plaintiff was not bound to take it.” Such charge being erroneous, because the Court failed to state to the jury what would constitute *a legal establishing or adopting of the new road as the public highway.
    2d. Because the Court erred in charging the jury in reference to the measure of damages, “that the plaintiff might be entitled to recover compensation for his bodily and mental suffering, and for the injury to his pride, his manhood.”
    3d. Because the verdict was contrary to the law and the evidence.
    The motion was overruled, and the defendant excepted upon each of the grounds aforesaid.
    When this case was called in the Supreme Court, a motion was made to dismiss the writ of error, because the evidence adduced upon the trial was not identified by the presiding Judge in the Court below as true.
    
      The evidence had not been made a portion of the record upon the motion for a new trial, but was brought up as a part of the bill of exceptions. The oral testimony was set forth in the bill of exceptions. The depositions were attached to the bill of exceptions, with the following reference thereto therein contained: “Copies of the answers to said interrogatories are appended to this bill of exceptions, as a part thereof, and marked Exhibit. A.” The certificate of the Judge, in the usual form, followed the depositions, and to it was attached the' certificate of the clerk.
    The motion, after consideration, was disallowed, the Court expressly overruling the decision in the case of Reid vs. Reid, 43 Georgia Reports, 175.
    E. E. Beeckrey; John Courier, for plaintiff in error.
    PEEPRES & Howerr; P. E. Mynatt, for defendant.
    
      
      Damages — Measure of — Excessive—Ground for New Trial.— “There was no abuse of discretion in refusing to set aside the verdict and grant a new trial, upon the ground that the damages found were excessive. To authorize such interference as was invoked, the damages should have been so excessive as to lead the court to infer that they were the result of bias or prejudice upon the part of the jury.” City, etc., Railway of Savannah v. Brauss, 70 Ga. 380, principal case cited with approval.
    
    
      
      Bill of Exceptions — Oral Evidence in Same — Judge’s Certificate.— “Whatever precedes the judge’s certificate, though called an exhibit is a part of the bill of exceptions, and may be verified by the certificate alone.” Colquitt v. Solomon, 61 Ga. 494, principal case cited with approval.
      Same — Same.—.“If it be sought to bring up evidence in a bill of exceptions to be considered, 'it must be incorporated in such bill, or attached thereto and identified by the signature of the judge thereon. Whatever precedes the judge’s certificate is a part of the bill of exceptions and may be verified by the certificate alone. What follows the certificate must be distinctly identified.” Hancock v. Perkins, 68 Ga. 830, principal case cited with approval.
    
   McCay, Judge.

Under our law there is no authority to alter a public road but by an order of the Inferior Court, (now the Ordinary:) Revised Code, sections 643, 645; Constitution 1868, Article V.section 5. The proof here is clear, that up to a *short period the road had for years been just in the track where the plaintiff’s team went. But the road was changed in fact. Who changed it does not appear. The presumption is strong that it was done by the agents of the company, since the testimony is that the road continued as it had been until just before the work reached where it crossed the track. Even if the company had authority to make a new way, whilst the work at that precise point was progressing, it was of paramount necessity that the old track should be effectively blockaded, so that a traveler, by day or by night, might know there was an obstruction. But it is no part of this defense that the obstruction is lawfully there, if the old road is still the legal road. The only point of the defense on this branch of the subject is, that the road was permanently changed, and that the plaintiff, at the time of the fall, was not in the legal road. As we have said, there is no authority to alter a road except by order of Court. True, it is often done, but that does not make it lawful. It is not for private persons, nor even for overseers or road commissioners to alter a public road. Nothing but an order of the Court or permanent user can do this. Where the road had been located for years was the legal road, and if the change was made as contended, it was for the defendant to show it.

We do not wholly approve the language used by the Judge in his enumeration to the jury of the elements which go to make up the damages. The physical injuries of the plaintiff, and his mental and physical suffering, are proper elements. But when the Judge added “pride, manhood,” we fear he used language calculated in its ordinary signification to open the door too widely. The injury to the pride, manhood of the plaintiff, depends so entirely upon the character and temper of the plaintiff, that it can hardly he said to be the direct result of defendant’s, act. It is a possible result, but other contingent circumstances preponderate in making any estimate upon it: Code, section 3017. But this charge can only have been understood by the jury, in view of the facts, as relating to that injury which came to the plaintiff by ^reason of his deformity — the mortification which it put upon him from having to pass through life deformed, lame, shorn of his full proportions as a man. And this was not an improper element in the damages. In this sense, the charge is only another way of saying that the plaintiff is entitled to damages for having been rendered deformed by the defendant’s negligence. We do not see that the jury could have considered any such fanciful damages as depend only on the temperament of the plaintiff. There is a plenty of proof of real damage to justify the verdict. If this road was changed without authority of law. — -a trap dug and carelessly left open, to the detriment of those who, by night as well as by day, have a right to pass over the road — it was a gross wrong, and the road ought to pay for it.

We do not think the verdict contrary to evidence. This obstruction to the public highway was a wrong, so far as the evidence shows, and the plaintiff has seriously suffered from it, the damages given are by no means excessive, and the evidence justifies the verdict. It is only in a strong case where a new trial ought to be granted for excessive damages.

Judgment affirmed.  