22 Ga. App. 425 | Ga. Ct. App. | 1918
Lead Opinion
Some elaboration • of the principle embodied in the third headnote, as applied to this case, is deemed appropriate. In an action for damages by a passenger against a railway company, when it is established that thé personal injuries complained of were , qccasioned by the operation of the defendant’s locomotives or cars, a presumption of liability arises against the company; which prima facie case, however, is rebutted if from the evidence of the defendant, or from that of the plaintiff himself, it appears that any one of the following defenses is established.: (1) that the injury was done with the consent of the plaintiff, or was caused by his own negligence (Civil Code of 1910, § 2781); (2) that the plaintiff could by ordinary care have avoided the consequences to himself caused by the defendant’s negligence after such negligence had, or in the exercise of ordinary diligence should have, become known (Civil Code of 1910, § 4426); or (3) that the defendant had in fact exercised extraordinary diligence in protecting the person of the plaintiff. Civil Code (1910), §§ 2780, 2714; Douthitt v. L. & N. Railroad Co., 136 Ga. 351 (71 S. E. 470).
The instruction complained of in the seventh ground of-the motion for a new trial is as follows: “Failure to exercise ordinary
Dissenting Opinion
dissenting. About all that is expected and required of the presiding judge in presenting the rules of law governing the issues involved in a pending trial is that the charge shall be fair, clear, accurate, reasonable, definite, and full; but he must not, even by implication, intrench upon the province of the jury, nor touch upon matters not actually warranted by the evidence. Here, with us, even with the books before us, and aided as we'are by the'well-considered briefs and arguments of opposing counsel, it ofttimes is no easy thing precisely to state the law. And-even though the rules as here laid down can thus be formulated with the utmost caution and painstaking care, it nevertheless sometimes happens that a statement proves inexact, and must subsequently be criticised, or the decision itself overruled. But with the trial judge, it is not his function first to ascertain and then to state the law; his duty is to know it. Throughout the , shifting points of contest he must be able almost instantly to recog.nize and sustain those principles which are legally sound, and with