42 Ga. 327 | Ga. | 1871
In the case of Johnson vs. The Macon & Western Railroad Company, reported in 38th Georgia, 433, this Court held that section 2921 of the Code applied as well to railroads as to individuals. That section provides, that if the plaintiff, by the exercise of ordinary care, could have avoided the consequences to himself of the defendant’s negligence, he cannot recover. Ordinary care is defined by section 2034 of the Revised Code to be that care and diligence which a prudent man exercises in his affairs.
Can it for a moment be contended that the act of the plaintiff, in attempting to crawl under the cars, only temporarily stopped, as he knew they were, was the act of a prudent man ? It was, in fact, a most imprudent and rash act, and if section 2921 of the Code is to have any force at all, we think this case comes clearly under it. By the common law, if the plaintiff contributed, at all, by his negligence, to the injury, he could not recover. Our law does not go so far as this.
Were the case otherwise, we should hesitate to disturb the verdict, though the evidence strongly preponderates against it, on the question of blowing the whistle. And, though the verdict is very large, considering the proof, we are very reluetant to interfere where the case is one turning wholly on the facts.
We are of the opinion that if the whistle was not, in fact, blown, there was some negligence on the part of the defendant. It is a fair presumption, that the usual customs of the road will be complied with. This does not, however, excuse the rashness of the plaintiff in putting himself under the wheels of the cars, which he had every reason to expect would move, almost immediately, since, according to the habit of the cars, the stoppage was but for a very brief period. We sympathize deeply with the plaintiff in his misfortune, but we cannot make the statute a nullity in furtherance of our feelings.
Judgment reversed.