78 Ga. 694 | Ga. | 1887
Smith recovered against the Central Railroad Company heavy damages for a personal injury. The railroad company made a motion for a new trial, and it was overruled. One of the grounds of the motion was, that the judge instructed the jury that if there was a failure to check the speed of the train and ring the bell at a crossing within the limits of the town of Jonesboro, it was negligence ; also that a failure to observe an ordinance of the town as to the rate of speed, if they found there was such an ordinance (which question he referred to the jury), would be negligence. He charged them touching that ordinance as if it applied to the whole town; whereas, in looking to the record, we find that the ordinance applies only to the crossings within the town. It was not an ordinance limiting the rate of speed in running all the way from one corporation line to the other, but simply limiting the rate of speed to not exceeding ten miles an hour on the crossings.
A person, while grossly negligent himself, has no legal right to count on due diligence by others, but is bound to anticipate that others, like he has done, may fail in diligence, and must guard not only against negligence on their part,’ which he might discover in time to avoid the consequences, but also against the ordinary danger of there being negligence which he might not discover until too late. Smith shows by his own testimony that he did not discover his danger. If he had been on the crossing, or at any place he was by right entitled to be, he would have been warranted in assuming that the whole world would be diligent in respect to him and his safety, but as he was engaged in an act of gross negligence himself, he ought to
There are various grounds in the motion for new trial, various points made, but what we rule disposes of the case upon its real merits, and it is unnecessary to deal with every point. We reverse the judgment with the rulings which I have read from the bench in the notes prepared to be used as a syllabus to this opinion. The court erred in the charge, and the verdict was not warranted by the evidence.
Judgment reversed.