68 Ga. 744 | Ga. | 1882
Defendant in error brought his action against the plaintiff in error for personal injuries received by him in consequence of the alleged fault, negligence and illegal conduct of the agents and employés of the plaintiff in error, in and about the running of the trains of said company. He alleges “that on the 7th day of January, 1880, he had left his home about 10 o’clock in the morning, and was riding along the public road near by a point where the railroad track crosses the public road ; that as the petitioner was approaching the point of said crossing, he observed an engine and train approaching said crossing from towards the east end of said railroad track; that petitioner was in full view of said engine and train when the same was first observed by him as well as afterwards ; that he rode quietly and steadily along said public road until he had crossed and passed beyond said public crossing, and was ten or fifteen yards from said crossing, when the engineer of said train began suddenly and violently blowing the whistle of said engine, whereby plaintiff’s horse became frightened; and he'continued to blow said whistle until plaintiff’s horse ran away with plaintiff, had thrown him from his saddle upon the ground in a violent and dangerous manner, and under the sudden fright produced by the running of said engine and train, and the illegal, violent, sudden and unnecessary blowing of said whistle, he was trampled under the feet of his horse, thereby crushing him and seriously and painfully injuring him,” etc. He alleges “if said whistle had been blown as required by law at the distance of 400 yards from said crossing, and continued to blow up to said crossing, and checking the speed of said engine, the horse of plaintiff would not have been frightened, and plaintiff’s injuries would not have been sustained, and the blowing said whistle after plaintiff had crossed said railroad track and not before, and beginning to blow the same within sixty
Under the proofs submitted and the charge of the court, the jury returned a verdict in favor of the plaintiff for the sum of $1,000.00 damages. Whereupon defendant below made a motion for a new trial on various grounds, which are set forth in the record, which was refused by the court, and defendant excepted.
Second: That he caused it solely by his own negligence.
Third: That the defendant; the Georgia Railroad, by its agents, exercised all ordinary care and diligence.
The law fixes the burthen of proof on the defendant in this case to prove one of the three above propositions. Upon proof of an injury by a railroad company in this state to any one, the law presumes the railroad company was at fault, and the burthen of proof is upon the company to show to the contrary, and it can do so in the three ways just before stated.”
Also, because the court erred in refusingto give in charge to the jury the following written request as asked for by counsel for defendant below: “ Now if you find from the testimony that the conduct of Thomas, at the time of the accident and just before, in meeting an approaching train, riding a horse that was known to be afraid of the cars, and on a saddle that was insecure was not that of a prudent man, and that he did not exercise ordinary care as already defined, then I charge you he cannot recover in this case, and you should find for the defendant.”
It is insisted by counsel for defendant in error that the written charge given on their request as complained of, in which the court instructed the jury that the railroad company would be liable for damages unless it .established one of the three propositions therein stated, to-wit: that the plaintiff consented to the injury; that he caused it solely by his own negligence; that the defendant exercised all ordinary care and diligence, was not error, because such was the rule recognized and stated by this court in the case of the Georgia Railroad vs. Neely, in 56 Ga., 543. But it will be seen that this rule in that case was applied, and intended to be applied, alone to suits for damages to property, and not to personal injuries which may be the subject matter of suit. For in the same case the judge pronouncing the decision
It is complained by plaintiff in error the court in this suit for personal injuries laid down a rule made applicable to damages to personal property, and thereby omitted and. ignored the important ground of defence relied upon im this case, that “ If the plaintiff by ordinary care could have avoided the consequences to himself by the defendant’s negligence, he is not entitled to recover.” Code, 2972. We are of opinion this complaint is well founded,, especially in this case, when taken in connection with the fact that the defendant below by a written request asked the court to charge, and which'charge the court refused,, that “If you find from the testimony that the conduct of Thomas was not that of a prudent man, and that he did not exercise ordinary care as already defined, then I charge you he cannot recover in this case, and you should find for the defendant.”
The written request of plaintiff below ignores and omits the main and chief ground of defence relied upon by the defendant below; and when it is thus omitted in a written request presented by plaintiff below and given,, and the defendant below seeks to cure and correct that omission by asking in writing that the court should instruct the jury “ that the plaintiff cannot recover if he could by the exercise of ordinary diligence have avoided the injury,” we think it was such an error as entitles the party complaining to a new trial.
But it is insisted that the court gave this principle embraced in the 2972 section of the Code in his general charge to the jury, and that cures the error, if any. While this may be and is true ordinarily, yet, if when the general charge is completed, and the plaintiff for the purpose of grouping and presenting in a written request all the
Judgment reversed.