21 Ga. App. 231 | Ga. Ct. App. | 1917
(After stating the foregoing facts.)
1. The defendant company demurred to the amended petition, upon the ground that the petition set forth no cause of action, and upon the further grounds that the petition, as amended, “is ambiguous and duplicitous, and does not set forth the facts upon which the plaintiff relies for recovery plainly, fully, and distinctly,
2. It is insisted in ground 1 of the amendment to the motion for a new trial that the court erred in failing to give in charge to the jury the law of contributory negligence (comparative negligence) and apportionment of damages. This question was not •raised by the pleadings, nor was there any written request so to charge. Under the repeated rulings of the Supreme Court, it is not reversible error for the court to fail to- give in charge to the jury the law of contributory negligence, and apportionment' of damages, where it is not under the contentions of the parties^ directly involved in the case, and when there is no request to charge upon that subject. Savannah Electric Co. v. Crawford, 130 Ga. 424 (60 S. E. 1056). In that ease, however, Justice Lumpkin, who delivered the opinion, said: “Where the evidence authorizes a charge on that subject, it is the better practice for the presiding judge to give it.” In Central of Ga. Ry. Co. v. Madden, 135 Ga. 206 (69 S. E. 135, 31 L. R. A. (N. S.) 813, 21 Ann. Cas. 1077), it is said: “It is not good practice to omit entirely to give the jury any instruction on the subject of the measure of damages, or the diminution of damages which may result from negligence on the, part of the person injured, even in the absence of requests therefor.” It would'have been better in the instant case for the court to have charged the jury oh the subject of contributory negligence and apportionment of damages, though the failure to do so would not alone constitute reversible error.
4. In ground 3 of the amendment to the motion for a new trial the following charge is assigned as error for various reasons therein stated: “If, under the rules I have given you in charge, you believe that the plaintiff has made a case wherein he ought to recover, then the amount that he could recover would be for whatever injury or damage the jury may think that he has received in consequence of his injury. He sets up that he has ten years yet to live, sets up that he has been able to earn $50 a month. You look to the evidence and see whether that is true. If you find.he is entitled to recover in consequence of these injuries, find out how much he wasJable to earn; find out how much his earning capacity
5. The able counsel for the plaintiff in error earnestly contended in their brief that the plaintiff was precluded from recovery because of the fact that the train was-moving so rapidly that the danger to him in attempting to alight therefrom was so obvious that a prudent man, unden similar circumstances, would not have
Judgment reversed.