1 Ga. App. 609 | Ga. Ct. App. | 1907
Presented as an isolated proposition, it is error to instruct a jury that one who -uses as much care relative to his neighbor’s property as he does to his own is exercising ordinary care.
The storm centre of the motion for new trial was the following instruction given the jury by the trial judge: “I charge you, gentlemen, that if jrou are satisfied by a preponderance of the testimony that the defendant, the Chattahoochee Lumber Company, used as much care in the protection of their neighbor’s property as in the protection of their own property, the defendant would not be liable.” This instruction standing alone would be error requiring a new trial. Section 2898 of the Civil Code reads, in part: "Ordinary diligence is that care which every prudent man takes of his own ■ property of a similar nature.” To omit from this succinct definition the phrase "every prudent man” is to radically alter not only its form, but its substance. In every case involving the law of negligence the jury should, in the light of the facts of that case, take the mould of a prudent man. If the person charged with a lack of ordinary care does not fill that mould, the charge of negligence is established. When it is shown that his stature is not that of a prudent man, he can not seek shelter from the results of his tortious acts, under the claim that he treated his neighbor’s property as he did his own. Though the reckless and adventurous entrepreneur may treat the property of others just at lie treats his" own, he will not be held blameless in law. While-all this is true, still,-in the present case, the court gave correct instructions to the jury several times on the subject
This is the second verdict for the defendant and is amply sustained by the evidence. Those exceptions to the rulings and charge of the court not discussed do not, we think, demand a third trial of the case. , Judgment affirmed.