20 Ga. App. 789 | Ga. Ct. App. | 1917
(After stating the foregoing facts.)
The uniform decisions of the Supreme Court and of this court, to the effect that a judge in charging a jury can not state what particular acts or facts constitute negligence, unless such acts or facts constitute negligence per se under the operation of a statute or valid ordinance, are too numerous to require more than a mere reference. In West End and Atlanta Street Railway Co. v. Mozely, 79 Ga. 463 (4 S. E. 324), the first headnote of the case is: “Where suit was brought against a street-railway company to recover for an injury alleged to have been received by a passenger in leaving a car, it was error to charge the jury that 'if the plaintiff rang the bell as a signal to the driver to stop, and the car stopped, and the plaintiff, without fault on his part, was in the act of alighting, and before he had completely left the car,—as by having one foot upon the ground and one still on the step—the car suddenly started forward at the will of the driver, and the plaintiff was, by reason of the start or jerk, thrown to the ground and injured, the defendant would be liable.’ Such a charge was equivalent to instructing the jury that the facts recited would show the defendant to be negligent. Whether or not the defendant was negligent was a question for the jury.” In the decision in that case it was said: “We think this charge was error. It took from the jury the consideration of the great fact in- the case, whether the defendant was guilty of negligence in thus doing; it was for the jury to say whether these facts made the defendant negligent. They were the legal alchemists, as has been said by a distinguished member of this court, to determine what was and what was not negligence. It was not' for the court.” See also Georgia Railroad & Banking Co. v.
Under the testimony in this case there was a sharp issue as to whether the conductor in charge of the car, or some unauthorized-person or passenger thereon, gave the signal which caused the motorman to start the ear forward and thus precipitate the plaintiff upon the street. The conductor testified positively that he himself did not give the signal. The motorman testified that the signal was given, but he was unable to say by whom it was given. A witness for the plaintiff testified positively that he saw the conductor, or a person wearing the uniform cap of a conductor, give the signal; and there was testimony for the defendant tending to show that this witness at the rear of the car could not have seen the conductor up near the front, because the ear was crowded and the aisle was full of standing passengers. There is nothing whatever to suggest that the conductor, if he in fact gave the signal for the car to proceed, saw or could have seen the plaintiff from inside the car as she attempted to step upon the platform, or knew that she would attempt' to enter the car, and there was no testimony from which it must necessarily be inferred that it was the duty of the conductor to remain on the back platform of the car at all times and under all circumstances to guard against possible injury to passengers seeking to enter the car at that point, but, to the contrary, his explicit testimony was that he was required, in the performance of his proper duties, to enter the car and approach the
It is true that the charge complained of was immediately followed by the instruction that if the injury was caused by the negligence of the plaintiff, and she could by the exercise of ordinary care and diligence have avoided the consequences to herself of the defendant’s negligence, no recovery could be had; but the charge complained of was given, without. qualification, as a complete statement of the facts which if proved would constitute negligence on the part of the defendant and render it liable; and hence the qualification included in the additional instruction can not be held with reasonable certainty to have removed all probable harm from the preceding bald statement that certain enumerated facts would render the company liable. This excerpt, when considered alone, eliminated from the consideration of the jury the further question whether the plaintiff was in the exercise of ordinary care in hurrying aboard the crowded car without any knowledge as to the whereabouts of the conductor, and with no means of knowing whether
The defendant in error cites, in support of her contention that the excerpt above quoted is not subject to the exceptions taken, the case of Savannah Electric Co. v. Bennett, 130 Ga. 597 (61 S. E. 529). In that case the charge complained of was as follows: “If you find that the ear was stopped for the purpose of enabling the plaintiff to alight, and that she was not afforded a reasonable time and opportunity to alight with safety, and while in the exercise of ordinary care for her own safety she was injured as alleged in her petition, you would be authorized to find for the plaintiff.” In the decision Mr. Justice Atkinson said: “The court in effect charged that the railroad company owed the passenger the duty to afford her a reasonable opportunity to alight in safety, and if there was a' breach of this duty and the plaintiff was injured while in the exercise of ordinary care for her own safety, she could recover for such breach of duty. This is merely the application of legal principles involved in the case, and does not withdraw from the consideration of the. jury any question of fact. The plaintiff was a passenger on the ear of the defendant, and, as a matter of law, was entitled to a reasonable opportunity to alight in safety at the place of her destination, and the charge was not open to the criticism made upon it.” It will be observed that the charge com
It has been repeatedly held, as already suggested, that the only instance in which a trial court has the right to instruct the jury in a negligence case that certain acts' or facts constitute negligence is where there is a statute or valid ordinance so declaring. Central Railway Co. v. McKenney, 116 Ca. 13, 16, 17 (42 S. E. 229); Central Railway v. McKinney, 118 Ca. 535, 537 (45 S. E. 430); Atlanta, Knoxville & Northern Ry. Co. v. Bryant, supra; Augusta Railway & Electric Co. v. Smith, 121 Ca. 29, 32 (48 S. E. 681); Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (8), 369 (54 S. E. 110). In the McKenney case (116 Ga. 13, 16) a charge held to he error was: “If you believe the train did not stop long enough to allow this passenger to alight in safety, that would be, upon the part of the company, negligence.” The court in so holding quoted from the decision- in the Bryant case, as follows: “ Only the commission of those acts which are prohibited by statute, or the omission of those things which are prescribed by statute, constitutes, under such circumstances, negligence per se. Whether the commission of acts other than those so inhibited, or the omission to perform those required, constitutes negligence, is a question of fact, and must be determined by the jury, and not by the judge.” It may be said further that a clear distinction between the instruction approved in the Bennett case, supra, and the case now under consideration may be found in the fact that in' the former ease the measure of the railroad company’s duty, as there defined, was to afford “a reasonable time and opportunity to alight with safety,” whereas in the case under consideration the measure of the railroad company’s duty was declared to be that it must afford the passenger “a chance to get on the car,” and that if the car started “before she had a chance to get bn the ear,” the company would be liable. The phrase “before she had a chance to get on the car” is indeterminate, vague, and indefinite, and does not exclude a bare chance or a desperate chance, or confine the jury
Had the plaintiff been already on the car, she would have been entitled to a reasonable opportunity to alight therefrom in safety, and possibly an instruction that she was entitled to “a chance” to get off of the car in safety, considered by itself, would have been unobjectionable; but the instruction that if the signal was given by the conductor for the car to start while the plaintiff was in the act of getting on the car “and before she had a chance to get on the ear,” and she was thrown to the ground and injured, the railroad company would be liable, undoubtedly excluded the question whether (under the circumstances) the plaintiff was in the exercise of ordinary care in attempting to get on the car at all, or whether the conductor was in the exercise of extraordinary care in giving the signal for the car to start while she was (unknown to him) thus attempting to get on it. It was the duty of the railroad company to give the plaintiff a reasonable opportunity to enter the car with safety, but the question whether or not the opportunity afforded her at the time of the injury was apparently so reasonable as to relieve her of the charge of failing to exercise ordinary care for her own safety in making an attempt to enter the car,—or
Judgment reversed.