34 Ga. App. 207 | Ga. Ct. App. | 1925
(After stating the foregoing facts.) With reference to the rulings made in the last three divisions of the syllabus, relating to exceptions to the charge on the subject of negligence,—it is provided by the Civil Code (1910), § 4426, that, “if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” In Americus &c. R. Co. v. Luckie, 87 Ga. 6, 7 (13 S. E. 105), it was held that “the ‘other eases’ referred to are manifestly those in which the plaintiff could not by ordinary care have avoided the consequences of defendant’s negligence. In cases of that kind, both parties being at fault, the damages are apportioned.” But the rule which precludes the plaintiff from any re
“When a judge undertakes to charge the law upon any subject, he must charge all of it upon that subject that is material and applicable to the case.” Hinson v. Hooks, 27 Ga. App. 430 (108 S. E. 822). This rule is in no wise in conflict with that expressed in Wilson v. Small and Ga. Granite Gorp. v. Union Granite Go., supra, that a failure to charge a legal principle in the same connection with another correct and pertinent rule is not erroneous; for the latter rule assumes that the instructions on the rule given are correct and stated with sufficient completeness not to confuse the jury. In the instructions now under review the judge obviously was not confining himself to the rule set forth in the first sentence of section 4436, wholly precluding the plaintiff’s recovery, but was also dealing with the distinct rule of comparative negligence, partially but incompletely stated in that section. While the judge was under no duty, in the absence of any raising of the issue by the pleadings or of any request to charge, to deal with the rule
Judgment reversed.