25 Ga. App. 606 | Ga. Ct. App. | 1920
1. This was not a suit to recover damages based solely upon the theory of a wilful and wanton act perpetrated by the servants of the defendant, and only upon the proof of which a recovery would be justified; consequently the rulings made in Savannah Electric Co. v. McElvey, 126 Ga. 491 (55 S. E. 192), and Southern Railway Co. v. Wiley, 9 Ga. App. 249 (71 S. E. 11), are not controlling in the defendant’s favor.
2. The second and third special grounds of the motion for a new trial are without merit, since the excerpts from the charge there complained of are not erroneous within themselves, and must be taken in connection with other portions of the charge, where it was plainly stated that the plaintiff could not recover if, by the exercise of ordinary care on his own part, tlie injury could have been avoided. Atlanta & West Point R. Co. v. Miller, 23 Ga. App. 347 (3) (98 S. E. 248).
3. Where suit is brought in this State to recover damages for personal injuries sustained in the State of Tennessee, the rights of the parties as to the merits of the case, as distinguished from the procedure, are to be determined by the law of Tennessee; and whore no statute of ■ that State is pleaded or shown, it will be presumed that the common law is of force there. Lay v. Nashville, Chattanooga & St. L. Ry. Co., 131 Ga. 345 (62 S. E. 181).
4. Under the common law, the rule of comparative negligence did not obtain, and any negligence on the part of the plaintiff which, taken in connection with the negligence of the defendant, contributed to the proximate cause of the injury would bar a recovery. Under that rule the degrees of the plaintiff’s negligence were not considered, but slight negligence was taken to mean “ a slight want of ordinary care.” 7 A. & E. Enc. Law (2d ed.) 373 (2), 375 (4), 377 (5); Macon & Western R. Co. v. Davis, 13 Ga. 68 (10). The trial judge, under the rule of the common law, properly omitted to give in charge the law of comparative negligence, and his charge on contributory negligence
Judgment affirmed.