121 Ga. 809 | Ga. | 1905
The first three headnotes require no elaboration. As to the fourth, see the case of Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328. As to the fifth, see Civil Code, § 3913, and Cheeves v. Danielly, 80 Ga. 115. As to the degree of diligence due by the defendant to the plaintiff the court in effect charged that, if the slab-pit was not a nuisance, then plaintiff could not recover unless it appeared that the defendant had been grossly negligent in its operation. It is clear that the defendant was bound, in such case, to exercise ordinary and reasonable care and diligence. 1 Thomp. Neg. §§ 727-730 : 13 A. &E. Enc. Law (2d ed.), 414. Failure on the part of the defendant to use this degree of care would be such negligence as to make it liable for damages thereby done to the plaintiff. Under our Civil Code, (§ 2898) the absence of ordinary diligence is termed ordinary neglect, while (§ 2900) gross neglect is defined as “the want of that care which every man of common sense, how inattentive soever he may be, takes of his own property.” The court’s charge was evidently based upon what was said in the opinion in Macon & Western R. Co. v. McConnell, 31 Ga. 133. An examination of the questions made in that case and of the charge there under review convinces us that the term “gross negligence” was used by Judge Lyon to mean simply a want of ordinary care. The court approved the charge of Judge Bull, in which appeared the
Judgment on main bill of exceptions reversed; on cross-bill affirmed.