51 Ga. App. 150 | Ga. Ct. App. | 1935
This was a personal-injury action on account of alleged negligence of the defendant in operating its train, which ran into the plaintiff at an excessive rate of speed in the City of Dalton, and negligence in approaching the crossing where the injury occurred without blowing its whistle, ringing its bell, or giving any other signal or warning of its approach, all in violation of the law and of valid subsisting ordinances of said city. Plaintiff alleged that the injury happened at night and that a high embank
It is true that “The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another’s negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence,” and that “Failure to exercise ordinary care on the part of the person injured, before the negligence complained of is apparent or should have been reasonably apprehended, will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured.” W. & A. Railroad v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 803); Williams v. Southern Ry. Co., 126 Ga. 710 (55 S. E. 948); W. & A. Railroad Co. v. York, 128 Ga. 687, 689 (58 S. E. 183). It is likewise true that “Exceptions to instructions by the court to the jury, which in themselves are correct, on the ground that the court failed to give in connection therewith other pertinent principles of law, do not furnish grounds for the grant of a new trial.” Roach v. State, 157 Ga. 112 (120 S. E. 771). It follows that the trial judge did not err in instructing the jury, in effect, that if the defendant was negligent as alleged, and the plaintiff by the use of ordinary care could have avoided such negligence, he could not recover, in that he did not charge in connection therewith that plaintiff’s duty to avoid the negligence of the defendant, if it was negligent, did not arise until defendant’s negligence was existing and apparent, or the circumstances were such that an ordinarily prudent person would have reason to ap
The trial judge charged the jury that “Even if you find that the defendant was negligent in one or more of the particulars alleged, yet if that negligence was not the direct and proximate cause of the injury complained of, then the plaintiff can not recover.” This excerpt stated a correct and applicable principle of law. Perry v. Central Railroad, 66 Ga. 746; W. & A. R. v. Crawford, supra; Queen v. Patent Scaffolding Co., 46 Ga. App. 364 (3) (167 S. E. 789); W. & A. R. v. Leslie, 48 Ga. App. 714 (173 S. E. 170). If the plaintiff desired a further instruction in connection with the above principle of law, it should have been duly and properly requested of the court.
The court erred in charging that if the defendant “was negligent in the particulars alleged in the petition, and the plaintiff in the particulars in which the defendant alleges, and the plaintiff’s negligence was, along with the negligence of the defendant, both contributed together to cause the injury, and if the defendant and he also had been negligent, and if the negligence of the plaintiff contributed as the direct and proximate cause of the injury, then that would be a question of contributory negligence where the plaintiff would not be entitled to recover damages from the defendant,” and the error in so charging requires the grant of a new trial. Especially is this true since the court later, in recharging the jury, instructed them on contributory or comparative negligence, and prefaced his charge to them on this principle of law with the statement: “There is another division of the law applicable to this case. It must be considered without confusing it with the instructions I have heretofore given you in reference to the obligations of the plaintiff Crawford and the defendant railroad company.” The court then substantially gave in charge to the jury the law of comparative or contributory negligence, but in doing so, as stated aboye, told them that this was another or different division of the law and it should be considered without confusing it with the instructions previously given them.
case if they wanted to.” See, in this connection, Dalton Fruit & Produce Co. v. Puryear, 22 Ga. App. 489 (96 S. E. 344). The foregoing did not tend to unduly press or urge the jury to find a verdict, and certainly not to return a verdict for either one side or the other. Golatt v. State, 130 Ga. 18 (60 S. E. 107); Parker v. Ga. Pacific Ry. Co., 83 Ga. 539 (10 S. E. 233).
The grounds of the motion for a new trial were not subject to the criticisms urged against them, but were in sufficient form to be passed upon by this court.
The contention of the defendant that a verdict in its favor was demanded under the evidence, and that therefore, even if the court erred in charging the jury, a new trial should not be granted to plaintiff, is without merit. A verdict in defendant’s favor was not demanded.
The court erred in overruling the motion for a new trial.