106 F. 641 | 6th Cir. | 1901
after stating the foregoing facts, delivered the opinion of the court.
Under these circumstances, th’e question we deem it necessary to consider is, was the plaintiff, as a matter of law, guilty of a want of the exercise of ordinary care in stepping upon the track when the train must have been in plain view? The accident happened in the state of Georgia, and the statutes of that state are controlling. Numerous decisions have been made upon sections 2972 and 3084 of the Georgia Code, regulating this matter. This court had occasion in the case of Railway Co. v. Coggins, 88 Fed. 455, 32 C. C. A. 1, to consider them. Speaking by Judge Taft, the court said of those sections of the law:
“Sections 2972 and. 3034, when read together, introduce a variation from the common law in one respect only. They declare first that a plaintiff shall not recover when the accident is caused by his own negligence. They further declare that, even if the defendant was negligent In such a way as to cause the injury, the plaintiff shall not recover, if, with the defendant’s negligence as an existing condition of the situation, he could have avoided its consequences by ordinary care. So far these rules are the same as those established at the common law. Coasting Co. v. Tolson, 139 U. S. 556, 11 Sup. Ct. 653, 35 L. Ed. 270. Finally, however, they provide that, when the negligence of both parties is concurrent and contributes to the injury, then the plaintiff shall not, as at common law, be barred entirely, but may recover damages reduced below full compensation for the injury by an amount proportioned to the amount of the default attributable to him. The decisions of the Georgia court in construing these sections have not always been as clear and as intelligible as might be desired, but the foregoing coincides with the construction which has been put upon them by that court in the latest and earliest cases which have been called to our attention. Railroad Co. v. Luckie, 87 Ga. 6, 13 S. E. 105; Railroad Co. v. Johnson, 38 Ga. 409, 433.”
This construction of tbe Georgia statute seems in harmony with subsequent decisions in that state to which we have been cited, and' ■ was practically the view of the law taken by the learned judge who ,