18 Ga. App. 303 | Ga. Ct. App. | 1916
In this case the railway company was sued for personal injuries, and the jury found a verdict in favor of the plaintiff. The record presents two very serious objections to the charge of the court. In the opinion of this court, the trial judge erred in saying to the jury that they would be “ authorized” to diminish the amount of the verdict, in proportion to the amount of the' fault attributable to the plaintiff, in the event they found both parties at fault or negligent, and found that the plaintiff could not have avoided by the exercise of ordinary care and diligence the consequences of the negligence of the defendant. This is not the law. In such a case the law requires the jury to diminish the amount of damages in proportion to the amount of fault attributable to the plaintiff. Civil Code, § 2781. The court should have instructed the jury that if they believed, from the evidence, that both parties
3. The judge instructed the jury as to the duty of the motorman under certain circumstances. It is error for the court to instruct the jury as to what is diligence or negligence, except negligence which is as a matter of law negligence, — that is, negligence per se. The question as to what is diligence or negligence is peculiarly a question for the jury. In this case the court instructed the jury: “If there is one near the track, or on the track in danger, in an intoxicated condition, or under circumstances that would impress a reasonable man that the party was in no condition to care for himself, or to protect himself, and that he was not going to get out of danger, then it would he his duty to regulate his speed and stop in time not to injure him.” This was an expression of an opinion on the part of the court as to what, would constitute ordinary care and diligence on the part of the motorman running this car. It was for the jury to say whether or not it was the duty of the motorman “to regulate his speed and stop in time not to injure” the person on the track. In charging a jury it is improper for a trial judge to use language of a reviewing court in discussing a case, if such language expresses an opinion as to what is ordinary care and diligence. Macon Ry. & Light Co. v. Vining, 123 Ga. 770 (3), 772 (51 S. E. 719). Courts óf review are not bound by the “dumb law” that restrains the trial judge from the expression of ah opinion on a question of fact.
Judgment reversed.