131 Ga. 395 | Ga. | 1908
We shall not consider whether this charge .may have been open to any possible objection, but shall only deal with the assignments of error made in regard to it. The first objection is that the court used the expression “ordinary care,” instead of “ordinary care and diligence” or “his own skill and diligence.” We do not understand the assignment as raising a contention that the employee was bound to use more than ordinary care and diligence, or would be prevented from recovering by negligence less than that involved in lack of ordinary care; but rather as to the mere use of the words “ordinary care” without adding thereto skill ox diligence. The court instructed the jury that “if you further believe that he was injured by the running of defendant’s cars or engine, and was free from fault,” a presumption of negligence would arise against the company; and that if he was free from fault, and the defendant was negligent, the latter would be liable; and that if he made out a prima facie ease, the defendant could rebut it by showing either that he was negligent, or that it was free from fault. The terms “ordinary care” and “ordinary diligence” are commonly treated as synonymous or interchangeable, when applied to the same conduct, in cases of injury; and the mere employment of the expression “ordinary care” in a particular portion of a charge, instead of “ordinary care and diligence,” will not require a new trial, especially where the presiding judge defined the meaning of the term ordinary care as employed in the law, and the entire charge showed that there was no peculiar or restricted meaning attached to its use in the particular part to which exception was taken. Central of Georgia Ry. Co. v. Mote, ante, 166 (62 S. E. 164); Goodwyn v. Central of Georgia Ry. Co., 2 Ga. App. 470 (58 S. E. 688). When considered in connection with the entire charge, the portion of it on which error was here assigned was not subject to the criticisms made upon it, and did not require a new trial.
Judgment affirmed.