20 Ga. App. 454 | Ga. Ct. App. | 1917
It is conceded in the brief of counsel for the plaintiff in error that the plaintiff “introduced- some testimony to substantiate her case;” and it appears from an examination of the brief of evidence that this admission was not improvidently made. The general grounds of the motion for a new trial are therefore without merit.
In the testimony of the plaintiff appears this statement: “When I saw the car there, there wasn’t any light at all in the front of the car; no headlight; I. am very sure of .that.” Likewise, the sister of the plaintiff testified as follows: “As my sister and I started across there, I didn’t see any light at all on the car that struck me and my sister.” And again, she said, “I didn’t notice any light on the front of the car. . . There .was no light on the front of the car.” It may be assumed that it was not the intention of the plaintiff to allege in her petition the absence of the apparatus usually employed to furnish a light in front of a moving electric-car and commonly called a “headlight,” but that she intended to allege merely what she did allege,—that “the headlight of said car was not lighted, . . and the failure of the defendant from having said headlight lighted permitted the car to come up unawares on your petitioner,” etc. So, too, the language of the trial judge, instructing the jury that one of the grounds upon which the plaintiff alleged' negligence was that the defendant company “had no headlight” on its car, was undoubtedly intended to convey to the jury the same idea that there was no light or lighted headlight on the front of the car. If, however, this excerpt be subjected to the meticulous criticism suggested by this ground of the motion for a new trial, it is enough to say that the testimony of the plaintiff and her sister above quoted, if
The 11th ground of the amendment to the motion for a new trial assigns'error upon that portion of the excerpt from the charge above quoted which submitted to the jury, as an allegation of negligence upon which a verdict for the plaintiff could be based, “the allegation that the defendant was negligent because the headlight was not fully illuminated;” the objection being that there, was no testimony in the record to authorize this instruction. Paragraph
The 2d ground of the amendment to the motion for a new trial alleges that the court erred in the following charge to the jury; “If the evidence shows that the plaintiff was injured by the running of a car of the defendant company, as she charges she was injured, she would have the right to recover for the injuries received, for which she sues in her petition in this case, unless the defendant company shows you that its agents and servants in charge of said ■ear exercised all ordinary and reasonable care and diligence in connection with those things which are charged to be negligence in the plaintiff’s petition.” It is contended that this charge was erroneous because proof of injury would not authorize a recovery “in the absence merely of proof that the agents of defendant exercised ordinary care,” for the reason “that the presumption goes only to the extent of presuming negligence, and not to the extent of authorizing recovery.” The Civil Code (1910), § 2780, declares that “A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” By reference to the excerpt from the charge which is complained of in this ground of the motion, it will be seen that the court instructed the jury that the plaintiff “would have the right to recover for the injuries received for which she sues in her petition in this case,” and. section 2780, supra, declares “that a railroad company shall be liable for any damage done to persons, . . by the running of the . . cars or other machinery of the company.” It is obvious that the effect of the language used by the
We come now to the precise criticism urged against this excerpt from the charge, that it was erroneous because “proof of injury does not authorize recovery in the absence merely of proof that the agents of - defendant exercised ordinary care,” since “the pre
In the light of the entire charge, and in the absence of any denial that the court elsewhere gave proper instruction on that point, the 3d ground of the amendment to the motion, complaining that the “proof of the facts hypothetically stated” in an excerpt from the charge complained of would not authorize a recovery, because
It is suggested in the brief of counsel for the plaintiff in error that the illustration used by the court instructed the jury “that a contribution by the plaintiff of one third the total negligence would authorize a reduction of only one third the total damage sustained.” And it is contended by them in their brief that if “a contribution of one half of the total negligence takes away all the damages, then a contribution of one third of the total negligence takes away a great deal more than one third the total damages.” In the instruction given, the court distinctly recognized the rule above referred to, that if the negligence, of the plaintiff was equal to or exceeded that of the defendant, the plaintiff could not recover; for in the illustration presented the learned judge said, “If jmu believe that the defendant’s agents were guilty of two thirds of the negligence and the plaintiff was guilty of one third [a degree or amount less than one half] of the negligence, and you believe, under the evidence and the instructions which I give you, that the plaintiff would be entitled, otherwise than according to this rule, to a certain sum of money, that would be diminished, one third, according to the one third negligence attributable to her.”
Under the rule above referred to, if the negligence of the plaintiff equals or exceeds .that of the defendant, or, in other words, if one half or more of the negligence which produces the injury is attributable to the plaintiff and the other one half or remainder to the defendant, there can be no recovery. That is to say, if the negligence of the defendant company was not greater than that' of the plaintiff, there could be no recovery. If, however, the jury should find, under testimony sufficient to authorize such a finding, that the negligence of the defendant exceeded that of the plaintiff, a recovery -for the full amount of the damage sustained would be authorized, subject only to the reduction provided for by section 2781. That section distinctly and plainly declares that in eases where the plaintiff is entitled to recover at all (where, for instance, the negligence of the plaintiff does not exceed the negligence of
The 5th ground of the amendment to the motion for a new trial takes exception to an excerpt from the charge of the court, which referred to the allegations in the petition of the plaintiff as to the permanency of her injuries; and it is urged that there was no evidence to authorize the submission to the jury of the question of permanent injuries or of permanent pain and suffering from injuries. Not only does the plaintiff’s petition allege permanent injuries, but she testified: “It was about a year afterwards before I could wear any shoe. I have trouble with that limb now; sometimes it is weak now, I can hardly stand up on it and bear my weight on it; it hurts me a good deal!” Again she said: “I am nervous all the time since this happened. Yes, sir, Mr. Conyers [of counsel for defendant] made me nervous just awhile ago on the cross-examination.” The sister of the plaintiff testified: “I have been with her [the plaintiff] since then.' She is very nervous now.” The physician who attended the plaintiff likewise testified as to the nature of her injuries immediately after the collision with the street-car, and said that she was apparently suffering at the time; that he had visited her twice a day for a month or more thereafter, and she was in bed all of the time, “was suffering from her bruises, and she was unable to bear her weight on her feet, and she had a little fever. The sciatic nerve seemed to be bruised, or was bruised. . . The effect of a bruise or injury of the sciatic nerve extends to the whole nervous system; causes such intense agony that the whole system will respond to it.” He likewise said that some time after the injury he found the right limb of the plaintiff “somewhat shrunken up; it was not as large at that time as the other limb. That would indicate from my standpoint that there was a reflex of the condition of that nerve—from the effect on that nerve.” The'trial was had on the 13th day of April, 1916, and this physician further testified that he found the plaintiff in
There is no merit in any of the remaining grounds of the motion for a new trial. Ground 6, which complains that an excerpt from the charge is “obscure and misleading, and had a tendency to induce the jury to find permanent injury to plaintiff without legal-evidence upon which to base such finding,” is without merit. Ground 7 complains that the court erred in excluding the question, “Did Mr. Turner [meaning the motorman of the car] stop that car slow or quick when these young ladies stepped on the track?” and the answer of the witness, “Quick.” This testimony was objected to on the ground that it amounted merely to a conclusion of the witness; and it was excluded for that reason. This witness testified that the plaintiff was within “about three or four feet, I reckon, of my car when I discovered them [the plaintiff and her sister], and I threw on my brake as quick as I could [italics ours] to keep from hitting them. . •. My ear ran something like two or three feet, in my judgment, after that happened. . . Yes, I had my ear under thorough control, and I stopped it as quick as the brakes would apply to the wheels. . . I stopped the car as quick as I could when I saw them right at the crossing.” It is ap
The court did not err in declining to give to the jury the following, charge requested in writing: “If th§ plaintiff’s injury was the result of an accident, the jury should find for the defendant.” The theory of accident was not involved under the pleadings or the evidence, for. the plaintiff contended that the injury resulted from the negligence of the defendant, and the defendant insisted that it arose from the negligence of the plaintiff; and these contentions formed-the issue submitted to the jury by the court. Again, the brief instruction requested, without the addition of some further instruction, as to what might in law constitute an “accident” that would relieve the defendant from liability, tended to mislead or confuse the jury, since, to the mind of the average man not learned in the law, the term “accident” includes all occurrences not the result of intention; the charge- of the court sufficiently presented the issues in the case to the jury, and therefore the court did not err in declining this request.
In view of the full and fair charge given by the court as to the effect of failure on the part of the plaintiff to exercise ordinary care, and the general instructions touching all the issues of the ease, ’ so amply covered by the charge as delivered, there was no error in declining to instruct the jury, as requested, that “the precise thing which every person is bound to do before stepping upon a railroad track is 'that which every prudent man would do under like circumstances.”
The case appears to have been fairly tried under the recognized
Judgment affirmed.