22 Ga. App. 457 | Ga. Ct. App. | 1918
The plaintiff sought to recover of the street-railway company damages for alleged personal injuries. The allegations of the petition show substantially that he received the injuries in the following manner: He was waiting at Lakewood Avenue crossing, a regular stopping point on the East Point car line, to board-one of the defendant’s cars. As the car approached ‘ the crossing it slowed down, and, although continuing steadily to reduce its speed, had not come to a complete stop when he attempted to. board 'it. Just as he was in the act of mounting the front end of the car it suddenly increased its speed, starting forward with a. violent, unusual, and unnecessary jerk, causing him to be precipitated to the ground with such force and in such a manner as to break his leg. The defendant introduced testimony to the effect that the car was moving too rapidly-for the plaintiff to prudently attempt to board it, ¡pid also that it did not start forward with á sudden and unnecessary jerk when he was in the act of mounting the front platform.
The plaintiff in error relies upon the decision of the Supreme Court in the case of West End Ry. Co. v. Mozely, supra. In that case the following instruction was held to be erroneous, because the judge failed to qualify it by charging that the plaintiff must have used ordinary care to avoid the consequences of the defendant’s negligence: “If the plaintiff signalled the driver to stop, and the driver did not stop, so as to allow the plaintiff reasonable opportunity to alight with safety, but only slackened his speed, and the plaintiff, to avoid being carried beyond his destination, and availing himself of what opportunity was afforded him'to-..alight, endeavored to get off the ear while in motion and was thrown by a' sudden jerk of the ear, the defendant would be liable, provided you. believe from the evidence that the driver was negligent in not stopping the car altogether.” Under this instruction the negligence of the defendant consisted' in failing to stop the car at the plaintiff’s destination, and this negligence was necessarily apparent to him. It was, therefore, his duty to use ordinary care to avoid the consequences of the negligence of the defendant in taking him beyond his destination. The ruling in that case is inapplicable, however,
'Judgment affirmed.