140 Ga. 463 | Ga. | 1913
The plaintiff in the court below brought suit against-the defendant for damages resulting from injuries alleged to have been sustained by being struck by one of the defendant’s engines- and cars while crossing the railroad tracks of the defendant at a public street crossing in the City of Millen. The petition alleged, among other things, substantially as follows: At and before crossing the railroad tracks of the defendant the plaintiff looked in the direction from which the train of defendant was coming, and could see no light or cars, nor did he hear the bell or whistle. He was-riding on the rear of a two-horse wagon drawn by two mules and driven by a negro man. The train which passes the crossing at which the injury occurred was 20 minutes late on the day of the injury, and the plaintiff thought it had gone, but he looked in both directions before going on the track. It was about dark, and he could not see an object at any'distance. The train was about a car-length from him- when he first saw it, and was running at a high rate of speed, which he estimated to be about 25 or 30 miles an hour, and in excess of the rate prescribed by the ordinances of the City of Millen; and it was impossible for him to have avoided being struck by the engine. The mules became frightened and turned quickly up the track in the direction the train was going. The engine struck the wheels of the wagon and one of the mules. The rear of the wagon in which he was sitting was pulled towards the train, and plaintiff attempted to leap from it, but was jerked under the car behind the engine, which ran over his foot, necessitat
1. Error is assigned because the court refused a written request to give in charge to the jury the following: “If, however, you believe that the railroad employees were negligent to some extent, and you also believe that the plaintiff was negligent to an equal or greater extent, the plaintiff.can not recover in this case, and your verdict should be for the defendant.” The court erred in not giving this instruction. There was evidence tending to show that the defendant was negligent in having no headlight, in not, ringing the bell, and in running at a high rate of speed, etc.; there was 'also evidence tending to show that the plaintiff, or his servant who was driving, was guilty of contributory negligence at the time of the injury. There was nothing in the general charge of the court to cover the request as presented by the defendant. This court has held that where the injury complained of was the result of mutual negligence by the plaintiff’s servant and the defendant, there can be no recovery unless the servant was less in fault than the defendant. Central Railroad Co. v. Newman, 94 Ga. 564 (21 S. E. 219); So. Ry. Co. v. Watson, 104 Ga. 243, 247 (30 S. E. 818). This is the law in this State, as we understand it; and the requested charge being substantially ¶, correct statement of the rule, and being authorized under the facts of this case, it was reversible error to decline to give it, where a proper request therefor had been made. See Civil Code, §§ 2781, 6084.
2. Complaint is made because of the refusal of the court to give the following instruction to the jury, duly requested in' writing: “If you believe that the railroad employees were guilty of negligence caused the injury to plaintiff, and you believe that plaintiff could not have avoided the injury to himself by the exercise of ordi
3. Complaint is also made because the court refused a written request to instruct the jury that section 3675 of the Civil Code (commonly’ known as the blow-post law) was unconstitutional; also, because he declined to instruct them: “I charge you further that the latter part of said section, to wit, ‘and to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road/ is not the law of Georgia, and is invalid and not binding on said defendant, and that the same is unconstitutional.” Several reasons were assigned in the motion for a new trial why the section in question, as a whole, 'and the portion above quoted, were repugnant to the clause of the Federal constitution giving to Congress the power to regulate commerce. It does not appear from the assignments of error, however, that at the time of tendering the requests to charge, or at any time during the progress of the trial, any reason was urged before the court why the law in question was unconstitutional, or what provision of the constitution it was contended it was in violation of. The request was for the court to charge broadly that the law was unconstitutional, without giving or urging at the time any reason why it was so. Grounds as to
4. Complaint is made because the court refused "to rule out all of the evidence introduced in reference to an electric headlight or the failure to have an electric headlight on the locomotive.” This court has repeatedly ruled that an assignment of error upon the admission of testimony, which does not state what objection was made thereto when offered, nor set out literally or in substance the evidence referred to, is without merit and can not be considered. Wright v. Roberts, 116 Ga. 194 (42 S. E. 369); Pearson v. Brown, 105 Ga. 802 (31 S. E. 746); Tompkins v. Compton, 97 Ga. 375 (23 S. E. 839); Willingham v. Sterling Cycle Works, 113 Ga. 953 (39 S. E. 314); Somers v. State, 116 Ga. 535 (42 S. E. 779); 1 Mich. Dig. Ga. R. 636-637; 13 Id. 134 (11):
5. The court did not err in overruling the demurrer to the petition.
Judgment reversed.
