26 Ga. App. 720 | Ga. Ct. App. | 1921
The plaintiff obtained a verdict against the street-railway company for damages because of its alleged negligence? in a collision of a car of the street-railway with the plaintiff’s automobile at a place where a public highway crossed the street-car track; the defendant’s motion for a new trial was overruled, and the movant excepted. The collision occurred in the town of Hapeville, and the negligence alleged was that the street-railway car was running at a reckless and dangerous rate of speed in approaching the crossing, to wit, at a speed of forty miles an hour, and that the motorman of the streetcar failed to give any signal of its approach to the crossing. The defendant denied the allegations of negligence and affirmatively set up that the injury was due to the negligent conduct of the plaintiff in approaching the crossing in violation of the State law regulating the speed limit applicable to the case. This law limits the speed in approaching a crossing or intersection of streets to six miles an hour. The plaintiff admitted that he ivas running faster than this and probably from twelve to fifteen miles an hour. The plaintiff and the motorman each claimed to have been unable to see the ap: proach of the other to the crossing, because of intervening houses, which obscured the view. Besides the general grounds, the plaintiff
Another error is assigned on this instruction of the court. The court charged that the violation of the law by the plaintiff must be the real producing cause of the injury sued for, before it amounts to a bar to his right to recover; and it is insisted that this charge eliminates the proposition that if it amounted to one half of the producing cause, it would also be a bar; and, secondly, that it was open to the objection that although the plaintiff may have been negligent in violating a penal law of the State, and this negligence may have been a contributing cause of his injury, still he might recover if his own negligence was not the real producing cause of the injury. It is alleged that the court erred in refusing a request to charge as follows: “If Mr. Reid [the plaintiff] approached the railroad-crossing at a greater speed than six miles an hour, and if this violation of the law contributed to cause his injury, then the jury should find for the defendant.” It will be seen that the exception to the charge and the request to charge involve the same principle,
As to the first objection to the charge, that it eliminates the proposition that the plaintiff could not recover if his negligence was equal to that of the defendant, an inspection of the charge will show that the criticism is not warranted. The court very fully and clearly submitted to the jury the law of comparative negligence. As to the second objection to this charge, we do not think it is sound in law or logic. It is wholly immaterial whether the act of negligence arises from a violation of a penal law or from a disregard of that due and proper care which the law requires to be exercised. Negligence is no more culpable civilly when it is a violation of a penal statute than when it results from the disregard of that proper care and diligence for the rights and safety of others; and negligence of either kind will not in the one ease entitle the plaintiff to recover, or in the other case prevent him from recovering, unless it is the efficient cause of his injury. If his own negligence is the efficient cause of his injury, he cannot recover. If the negligence of the defendant is the efficient cause of his injury, he can recover. This applies to the general rule on the subject, without reference to the doctrine of comparative negligence, which exists in a few States, among them the State of Georgia. A man who is negligent in the violation of a penal law of the State does not more effectively deprive himself of the right to recover than he does by his negligence in not doing some act which the law requires him to do, in the exercise of ordinary care, or in not avoiding, in the .exercise of ordinary care, the negligent act of another. The rule is stated by Mr. Thompson in his excellent work on Negligence, Yol. 1, § 82, as follows: “The mere fact that
One who commits an act of negligence in violating a penal statute of the State may be called upon to account to the State criminally for the offense, but in so far as injury results to another from such violation the question is simply one of negligence and its proximate results. In other words, where a person violates a penal statute, so far as the individual is concerned, and injury results therefrom, he is guilty of no more than simple negligence, and his offense is not necessarily aggravated by the fact that the negligent act which caused the injury was due to a violation of a penal statute. A tort committed by the violation of a penal statute is not necessarily a greater tort, so far as the injured individual is concerned, than a tort resulting from the failure to exercise such care and diligence as the law requires under the particular facts of the case. The question now under discussion is controlled by the decision of this court in Schofield v. Hatfield, 25 Ga. App. 513 (103 S. E. 732). Judge Stephens, in a very clear elucidation of this question uses the following language: “It is immaterial whether the negligence of the respective parties is established as a matter of law or as a matter of fact. The theory upon which an injured party is debarred of a right to recover when injured while engaged in the performance of an illegal or criminal act rests, not upon the ground that he is performing an illegal or criminal act, either alone or jointly with the defendant, but upon the ground that his conduct is negligent and is the proximate cause
Judgment affirmed.