138 Ga. 107 | Ga. | 1912
Lead Opinion
C. C. Brown filed his petition to recover damages for personal injuries alleged to have been caused by defendant’s negligence as hereinafter set out. The case, as shown by the petition and evidence of the plaintiff, is substantially as follows: The plaintiff was a passenger on one of the defendant’s passenger-trains, and Davisboro, on the defendant’s line of road, was his destination. The train reached Davisboro at night, or so early in the morning that it was yet dark. As the train approached Davisboro the station was announced. The plaintiff, who was a traveling salesman, left the train-when it stopped, a suit-ease in one hand and a sample-case in the other. There were no lights at the point' where he alighted, nor was the moon shining, and no lantern was used by the train crew, it appearing that their lantern was broken. The ground at the point at which the plaintiff alighted was considerably lower than the rails of the track, being several inches lower than the cross-ties. Being in total darkness and in ignorance of the long distance from the bottom step of the car to the ground, and carrying the two valises, plaintiff, on account of the unexpected distance and the absence of any stool on which to step, was thrown violently to the ground when he attempted to alight. In attempting to regain his feet he again fell against a brick wall, receiving the injuries for which suit is brought. The negligence alleged on which he relies for a recovery is the failure of the defendant to furnish a safe place to alight from the train, and in failing to furnish a
It is true that in some of the eases the Luckie case has been rather loosely cited, without regard to the exact point which the charge there considered involved, as above explained. But if the judge should give both of these rules of law in a particular case, and iff the rule preventing a recovery for failure to use ordinary care is really in substance a limitation upon the rule allowing recovery against a railroad company where both parties are at fault, it is difficult to see how giving the general rule first and the limitation or exception second can be error. The truth is, that these two sections of the code are the law of the State. One states a general rule authorizing recovery against a railroad company where both parties are at fault; the other states a particular instance in
Will the above statement of counsel to the court, in the presence of the jury, take the place of instructions from the court to the jury that the consideration of the evidence was to be limited to the particular purpose for which it was admitted? We hold that it does not; and that the failure of the judge to so instruct the jury was harmful error requiring a new trial. The defendant was entitled
Judgment reversed.
Dissenting Opinion
I dissent from the holding of the majority, which has the effect of granting a new trial on the ground that the court erred in refusing to give in charge to the jury the written request for the instruction set forth in the 7th division of the opinion. It was not error to refuse to give this charge, unless it was perfect and complete in itself relative to the subject dealt with. I do not think this request complete and perfect. Standing alone it might have had the effect of leading the jury to believe that the evidence as to raising the surface of the ground had been withdrawn from their consideration. This evidence had been properly admitted, as it was admissible for one purpose. If counsel desired to have, the jury limited in their consideration of the evidence to that particular purpose, they should have requested a charge embodying the limita
I am authorized to say that Justice Atkinson concurs with me in the views expressed in this dissent.