82 Ga. 109 | Ga. | 1889
Anna Hill brought her action for damages against Daniel Callahan and T. B. Redmond; wherein she alleged that, on the 23d of December, 1886, the defendants were engaged in building a railroad, and as contractors and builders thereof had entire charge of the work and the employment of laborers, and of the manner of conducting the work; that they had employed Charles Hill, her husband, to work on said railroad as a laborer; that on the 23d of December, the defendants ordered him to go to a fire near by and thaw out a quantity of. dynamite; that very near the fire “ a box of dynamite caps had been placed, by order of the defendants or their agents and employes; and said caps had been placed in a reckless and negligent manner so near the fire that there was great danger of their being thrown into the fire, or otherwise exploded; that in a short time after her husband had reached the fire for the purpose of thawing out said blasting material, notice was given that a blast was about to take place;
On the trial of the case, the jury, under the charge of the court, returned a verdict for the defendants. The plaintiff made a motion for a.new trial on the several grounds set out therein, which was overruled by the court, and she excepted. The 4th and 5th grounds of the motion for a new trial will show the gravamen of the complaint of the plaintiff' in error. The other grounds are similar to these, the same ideas being embraced in the instructions of the court complained of therein, and the same exceptions being made thereto. The 4th and 5th grounds are as follows:
“ 4th. Because the court erred in charging as follows : ‘It is incumbent on the plaintiff to show that deceased was without fault upon his part. You will look to the evidence in this case to see whether he was at fault in any way. If you should find he was at fault, that would defeat the recovery of the plaintiff.’ The court did not correctly state the rule of law. Even if deceased was slightly at fault, plaintiff might recover.”
“5th. Because the court erred in charging the jury as follows: ‘Negligence is a question for you alone. You will look and see whether they (the dynamite caps) were placed there by order of Callahan or Bed*112 mond, or their agents whom they had in charge of these explosives. If they were not placed there by Redmond or Callahan, or their agents whom they had in charge of these explosives, these defendants would not be responsible for this accident.’ ”
The case of R. R. vs. Harris, 76 Ga. 501, relied upon by plaintiff in error, was a case where the defendant pleaded not guilty as to the acts of negligence charged in the declaration, and under this plea gave in evidence facts which showed that the plaintiff’s husband was killed on account of his own negligence in jumping from the train. This evidence was admitted under the plea, and the court failed to charge the jury upon its effect; and this court ruled that the judge should have given the law upon this subject, whether requested or not; or, in other words, that it was the duty of the court to give the whole law in charge that was applicable to the case under the pleadings and the evidence. Plaintiffs should be confined in the trial to the case made by their pleadings, and defendants likewise, when they are required by law to plead specially. The making of one case in
In this case, when the court had finished its charge to the jury, the judge called upon counsel specially, and inquired if he had omitted anything in his charge, or if they desired any other principle given in charge, and ■ counsel for the plaintiff" replied that he was satisfied, or words to that effect.
J udgment affirmed.