104 Ga. 243, 4 Am. Neg. Rep. 602, 30 S. E. 818; Wrightsville & T. R. Co. v. Gornto, 129 Ga. 204, 58 S. E. 769.

The ninth ground of the amendment to the motion for a new trial is that the verdict for $10,000 is excessive and should be set aside because there is no evidence to support the same and it is so unreasonable as to show that it was the result of passion, prejudice, partiality, or undue bias on the part of the jury. This court would be loath to set aside any verdict upon such a ground, unless the record made it clear and unmistakable that in fact the verdict was unfair and excessive, or was plainly produced by prejudice, passion, or undue bias on the part of the jury. A careful inspection of the record in this case does not bring us to this conclusion. There was in our opinion ample testimony to sustain the verdict rendered; and who can say that the estimate placed by the jury upon the value of the life of the deceased was excessive, in view of the undisputed testimony showing her youth, health, and earning capacity, and taking into consideration the long stretch of years which lay before her when the tragedy (which the jury found had been brought about by the gross negligence of the defendants) cut short her days and deprived her son and husband of the value of her actual manual labor, as well as of her tender ministrations, unselfish devotion, and countless loving services. We may not go beyond the bald proof in the case and outside of common experience, or consider from the standpoint of sentiment the priceless value of a wife and mother; but, having only in mind the evidence which tends to indicate the present cash value of that life, we cannot on this ground set aside the verdict returned.

It does not appear from the record that the mortality tables or the annuity table (70 Ga. 844 et seq.) were any of them introduced in evidence; but, as said before, it is well settled that the jury is not restricted to the use of these tables or of any of them in determining the life expectancy of any person or the cash value of a life, or bound by the results to be reached thereby, but may determine from other circumstances in proof-as for instance the age, health, etc., of the deceased

person having the lantern to take it near the car before finding out whether such course was safe; that such person having been hired by defendant to remove the car, was the latter's servant and not an independent contractor; and that the evidence was sufficient to support the finding of the jury that the lighted lantern caused the fire and explosion. Brown v. Freeman, 84 N. J. L. 360 (1913).

2. Filling Tank Without Extinguishing Tail Light.

Plaintiff's automobile was taken to a drug store to be replenished with gasoline. Plaintiff's son, who drove the machine, stopped in front of the store, and an order for gasoline was given and accepted. It was about dark and the driver turned down the lamp attached to the rear of the machine be

what such value and expectancy might be. The tables not being in evidence, the court, of course, could not properly instruct the jury in regard to the use thereof.

In the case of Savannah, F. & W. Ry. v. Stewart, 71 Ga. 427, 446, Chief Justice Jackson, in specially concurring for the majority of the court, said:

"I do not think that there is any Procrustean rule in the mode of estimating the value of a life. The age of a man, the health he enjoys, the money he is making by his labor, his habits, are data from which the jury may argue how long he will probably live and work, and what his life is worth to his wife in its pecuniary value. I know of no law which requires tables of the probable length of life and its probable worth to be introduced. They may be a useful circumstance, but are not conclusive or absolutely essential."'

In Richmond & D. R. Co. v. Allison, 86 Ga. 145, 148, 149, 12 S. E. 352, 354, 355 (11 L. R. A. 43), Justice Simmons said:

"This court has considered this question upon different occasions, and in several cases has said that there is no 'Procrustean rule,' or fixed rule, in cases of this kind."

And in the same case it was further said:

"It may be said, however, that the life tables put in evidence would show a man's expectancy of life, and that the amount he was earning at the time he was injured would be a sufficient basis upon which to prescribe such a rule; but we do not think that this would in all cases be fair either to the plaintiff or to the railroad company. If the plaintiff were a young man of character, capacity, and industry, and had chosen his occupation and commenced its pursuit, his yearly income at first might be small, but in a few years he might be able to increase it very largely; yet, under the rule contended for, he would be confined during his life to the small income he was making at the commencement. On the other hand, if the plaintiff were an aged or a middle-aged person making a large yearly income, it would be unfair to the railroad company to take that income and his expectancy of life as the sole basis to determine the amount of his recovery; because our experience shows that a man in declining years has not ordinarily the same capacity to labor and earn money as a young man. It is then, that sickness, inability, and indisposition to labor come upon him more and more each year as he grows older. These and like facts should then be taken into consideration by the jury in behalf of the railroad company. None of these things can be proved with such exactness as would authorize a court to prescribe a fixed rule. As was said by the Supreme Court of the United States in Vicksburg, etc., R. Co. v. Putnam, 118 U. S. 554, 7 Sup. Ct. 2, 30 L. Ed. 257 [10 Am. Neg. Cas. 574]: 'It has

cause he thought it was too high, and then turned to the sidewalk. The tank that carried the gasoline was cylindrical in shape and was placed in the rear of the body and over the lamp. At the center of the top of the tank there was a hole, for the inpour of gasoline, covered by a filler. The distance from this cap to the top of the filler was twenty-four inches. The lamp had two glass sides, but the side next to the

store was of metal, so that the light Idid not show in that direction. The drug clerk approached the machine with a five gallon can of gasoline. He did not see that the light was still burning. The can was one used by wholesale dealers in shipping oil, and not a receptacle in which gasoline was shipped to defendant. The clerk placed a funnel in the mouth of the tank, and gently placed the projecting mouth of the can

never been held that the rules to be derived from such tables or computations must be the absolute guides of the judgment and the conscience of the jury.'"'

In Augusta R. Co. v. Glover, supra, the supreme court said that a charge which in effect limited the jury to the consideration of the life and annuity tables was subject to misconstruction, for "neither here nor elsewhere was the charge quite full enough as to the right of the jury to avail themselves of facts in the evidence irrespective of the mortality tables.'

In Boswell v. Barnhart, supra, it was said that:

"There was evidence that the deceased was 38 or 40 years old at the time of his death, and that when he was sent to the chain gang he weighed 195 pounds, was able-bodied, and, according to the testimony of several witnesses, was worth about $100 a year as a laborer. This evidence furnishes a sufficient basis for an estimate as to the probable value of the life of the deceased.''

We may test the verdict returned in several ways: The annuity table on page 847 of 70 Ga. fixes the sum of 12.037 as the sum to be multiplied by the annual earning capacity of a person 24 years old, in order to ascertain the present cash value of such a life; and this, multiplied in the instant case by $766, as the proved earning capacity of the deceased per annum, would produce a result less than $10,000, or only $9,220.34, which is considerably less than the amount of the verdict returned. On the other hand, while the Carlisle mortality tables give the life expectancy of a person 24 years of age as 38.59 only, the jury may have concluded that the expectancy of Mrs. Reagan exceeded this number of years, and, under the facts in evidence, might amount to 40 years, as alleged in the plaintiff's petition, since the results given and the methods suggested in the mortality and annuity tables are not binding and conclusive, even where the tables are in evidence.

It is true it appears from the seventh ground of the amendment to the motion for a new trial that the judge instructed the jury as to the use of one method suggested by him for arriving at the cash value of the life of the deceased, and, had the jury strictly followed the instructions given them, they could not, under the evidence (unless they had

over the rim of the funnel. After about a gallon of gasoline had been poured in, the gasoline was ignited and an explosion followed, damaging the machine. It appeared that the gasoline was spilled unconsciously, and that it came in contact with the lamp. There was a verdict and judgment for the plaintiff, which was affirmed by the court of civil appeals. In reversing the judgment and in entering judgment for

the defendant, the court held that in the absence of evidence as to who removed the cap from the tank, it would be presumed that plaintiff's son removed it before he ordered the tank filled; that the light should have been extinguished, but, from the facts found, plaintiff had not shown this to have been incumbent on the defendant; that negligence was attributable to plaintiff's son in merely lowering the light,

estimated the life expectancy of the deceased beyond the 40 years alleged, or had estimated her earning capacity above $766 per annum), have found a verdict for as much as $10,000; for, allowing that the expectancy would be 40 years, the gross value of the life of the deceased at $766 per annum would be $30,640, and this sum, divided by $1 plus the interest on the sum of $1 for 40 years at 7 per cent., or by 3.80, would make the cash value of the life of the deceased only $8,063.15. However, it must be borne in mind that the jury were seeking to determine the cash. value of earnings amounting to $766 per annum for a period of about 40 years, or, to put it differently, the present cash value of an annuity of $766, payable during a fixed period of about 40 years, and that the present cash value of a lump sum due and payable at the expiration of 40 years from a given date would be quite different and much less than the actual present cash value of the same sum payable in yearly instalments, during a like period of 40 years. To illustrate the difference we have in mind, the present cash value of an annuity of $1 for a term of 40 years at 5 per cent., properly compounding the interest, would, according to a table in Merriman's "American Civil Engineers' Pocket Book" (John Wiley & Sons, New York, 1911), p. 1144, be $17,159.09; whereas, the present value of a lump sum of $40 (the aggregate sum of $1 per annum for 40 years) would, according to the method suggested by the court, at 5 per cent. simple interest, amount to $13,333 only.

Again, suppose, by way of further illustration only, the jury found the expectancy of the deceased to be 40 years, and concluded that her annual prospective earnings would average considerably less than the highest cash value proved at the time of her death, and, while adopting the suggestion of the court that the present value of her life be ascer tained by dividing the sum total of such prospective earnings for 40 years by $1 plus the interest thereon at 7 per cent. (not compounded), they may have further decided to compute such interest for the average time of 20 years only, instead of for the entire period of 40 years, for

removing the cap from the tank, and walking away without any explanation to the defendant that the machine had not been put in readiness for the filling of the tank; that the negligence of plaintiff's son in leaving the light burning was the proximate cause of the injury; that if, notwithstanding defendant's fault, the negligence of plaintiff's son continued and contributed to the accident, then either the negligence of

the parties was concurrent, or else plaintiff's son himself must be held as having had the opportunity of avoiding the injury, and his contribution was, in either event, not remote in the chain of causation; and that where plaintiff and defendant were both guilty of acts of negligence, which together constituted the proximate cause of the injury, the negligence of plaintiff, how

the reason that such earnings might be considered as an annuity, and they might thus have easily found more than $10,000, and this method, though evidently not mathematically accurate, may nevertheless have produced a correct result, under some views they may have entertained of the evidence, and allowing for proper adjustments and reductions, and all necessary modifications. It is unnecessary, however, for us to surmise how the jury reached its verdict, if the verdict found was, under any view, reasonably authorized by the evidence. It is true the trial judge instructed the jury how to arrive at the present cash value of the life of the deceased, and (as we have said above) the use of this method may have produced an amount less than the amount of the verdict; but the jury were not confined to the particular method of calculation suggested by the court, or in fact to any particular method of calculation, and were authorized to adopt any method which might produce a correct and legal result, and a result in excess of that which could be reached through the method suggested by the court. So, entirely regardless of whether the instruction given by the court was absolutely correct or not, or was in fact followed by the jury, and without even conjecturing how the jury reached their verdict, if that verdict can be upheld under any view of the evidence and under recognized legal rules, in the absence of error in the conduct of the trial which was harmful to the defendant, it should not be set aside because, under some view or by some particular method of calculation, we cannot arrive at the same result. As held in Spence v. State, 7 Ga. App. 825, 68 S. E. 443:

"The validity of a verdict is to be tested by the law as it is written, and not by the law as it is given in charge."

In Birmingham Fertilizer Co. v. Dozier, 13 Ga. App. 760, 79 S. E. 927, it was said:

"If the result reached by the jury would have been the correct conclusion of the case had the judge ruled or charged in accordance with the contentions of one of the parties to the case, the verdict will not be set aside merely because the judge

ever slight, barred a recovery. Grigsby & Co. v. Bratton, 128 Tenn. 597 (1913).

B. To Launch-Defective Construction.

Plaintiff owned a gasoline launch, the engine of which was located about the middle of the hull. A gasoline tank was located forward of the engine. The hull was decked over by an oval deck from a little aft the engine and extend

ing to the bow. Immediately over the

engine were two doors which opened upward. These doors formed part of. the oval deck. Plaintiff procured defendant to install two additional tanks on either side of the engine within the covered portion of the launch. Plaintiff's agent then ran the boat to the docks of an oil company to have the tanks filled. While the tanks were being filled the engine was left run