15333 | Ga. Ct. App. | Dec 15, 1924
This was an action for damages against a railway company for injuries alleged to have-been received by the driver of an automobile, occasioned by a collision with the rear end of a freight-train at a public crossing within the limits of an incorporated city. The evidence was in conflict upon almost all of the material issues in the case, including the question whether the signals were given by the operatives of the train on approaching the crossing, as required by law. The verdict for the plaintiff, while not demanded, was fully authorized.
The act of 1921 regulating the use of automobiles and other vehicles provides that, “Upon approaching any . . railroad crossing, . . the operator of a motor-vehicle or motorcycle shall at all times have said vehicle under immediate control, and shall not operate said vehicle at a greater speed than ten miles per hour.” Ga. L. 1921, pp. 255, 256 (sec. 2). The defendant requested the court to charge the jury as follows: “I charge you further, the
The instruction given was better adjusted to the law and the evidence than the charge requested. The provision of law requiring the operator of an automobile, upon approaching such a crossing, to have the vehicle at all times under immediate control does not necessarily and as a matter of law include- the duty of so operating the car as to enable the driver to stop it “within vision” ■—assuming this expression to mean a constant ability to stop the car before reaching the crossing, after an approaching train may have come within the driver’s range of vision. An inability to do so might under given circumstances constitute negligence;'while, on the other hand, such a situation might not properly be chargeable to the mechanical condition of the car, the inattention or lack of skill of the driver, or an excessive speed at which it was being driven, but might be chargeable to the negligent manner of approach of the train to the crossing. The term used by the statute can not imply the constant ability to bring the car to a full stop instanter. It must mean, as the judge in effect charged, that, in approaching such a crossing, the operator of an automobile shall have and keep the machine under such constant control as would enable him instantly to govern its movements, including the power to stop within a distance in which such a vehicle, in good mechanical condition, driven by a reasonably skilful driver, and traveling at a lawful rate of speed, could be stopped. In the instant case the defense actually made by the railway company does not seem to rest to any large extent, if at all, upon the inability of the plaintiff to control her car at the time and place of the injury, since it is urged in the motion that it appears from the evidence to have been stopped within four feet after the brakes were applied; but the defense consists rather in the alleged negligence of the plaintiff in failing, to control inore promptly a' car which was being driven in a manner which made it subject to immediate control.
Exception is taken to the refusal of the court to charge as follows: “If you believe that the defendant was negligent to some extent, and you further believe that Mrs. Burton, the driver of the automobile, was negligent to an equal or greater extent, the plaintiff can not recover in this case, and your verdict should be for the defendant.” The court on its own motion, at one place in the charge,
When the plea sets up contributory negligence as a ground of defense, and the evidence is such as might justify it, or when, even without such a plea, the evidence is such as might indicate it, and a proper request to charge on that principle is made, it is the duty of the court to instruct the jury accordingly. Southern Ry. Co. v. Weatherby, 20 Ga. App. 399 (2) (93 S.E. 31" court="Ga. Ct. App." date_filed="1917-06-27" href="https://app.midpage.ai/document/southern-railway-co-v-weatherby-5609827?utm_source=webapp" opinion_id="5609827">93 S. E. 31).
The rule of law which provides 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 (Civil Code of 1910, § 4426), is a different principle from what is known as the doctrine of contributory or comparative negligence. In the one case the failure of the plaintiff to exercise ordinary care to avoid the consequences of defendant’s negligence as it had or should have become apparent precludes a recovery; while under the doctrine of contributory or comparative negligence a plaintiff can recover partial damages for injuries caused by the negligence of the defendant railway company notwithstanding his own fault might in some less degree have contributed thereto. Accordingly, the giving in charge of the principle relative to the inability of the plaintiff to recover in case it should appear that she herself failed to exercise ordinary care did not relieve the .court of its duty to charge upon the rule of comparative negligence.
“In the trial of an action brought to recover damages against a railroad company for injuries sustained by the running and operation of a train of cars, it was error to charge in such manner as to convey to the jury the impression that if they should believe that both the company and the person injured were equally negligent, the plaintiff could recover.” Brunswick & Western R. Co. v. Wiggins, 113 Ga. 842 (3) (39 S.E. 551" court="Ga." date_filed="1901-07-19" href="https://app.midpage.ai/document/brunswick--western-railroad-v-wiggins-5570993?utm_source=webapp" opinion_id="5570993">39 S. E. 551, 61 L. R. A. 513). In such a case, “if both parties are equally in the wrong, neither can or ought to maintain an action against the other.” Southern Ry. Co. v. Watson, 104 Ga. 243, 247 (2) (30 S.E. 818" court="Ga." date_filed="1898-04-13" href="https://app.midpage.ai/document/southern-railway-co-v-watson-5568317?utm_source=webapp" opinion_id="5568317">30 S. E. 818). The pressure of the case resting largely upon the contentions of each party
Judgment reversed.