6 Ga. App. 38 | Ga. Ct. App. | 1909
The court sustained a demurrer to the plaintiff’s evidence and awarded a nonsuit; and exception is taken to this judgment. The legal question presented is, whether, under the evidence introduced by the plaintiff, the negligence of the plaintiff was so great as to preclude any recovery upon his part, as a matter of law. It appears that the plaintiff, without any signal on the part of the conductor, or any knowledge on the part of the motorman, went out upon the platform of the street-car, upon which he was riding a short distance, before the car had reached his destination, and, while standing on the steps with some bundles in his hands, was thrown from the step of the car and injured. The evidence did not develop the fact that there was anything unusual in the speed of the car, except that the plaintiff testified that there was a sudden jerk or quickening of the speed as the car rounded the curve and just before his fall. As the court could not have held, as a matter of law, that the plaintiff was guilty of negligence, from the mere fact that he was on the platform or on the step (Suber v. Georgia, Carolina & Northern Ry. Co., 96 Ga. 42 (23 S. E. 387), and Augusta Southern R. Co. v. Snider, 118 Ga. 146 (44 S. E. 1005)), we assume that the learned trial judge based the nonsuit upon the idea that the plaintiff had no sufficient reason for going upon the platform at the time that he did, or that the danger was so obvious that the plaintiff’s act, defeated his cause of action. We think that the question of negligence, as to a passenger upon the platform of a moving train, is as much a question of fact to be determined by the jury as any other phase of the subject which may. be presented in any action for personal injuries. It is true that in reaching this conclusion we are confronted with two lines of decisions, apparently conflicting; but we think the proper rule was laid down in Suber v. Ga., C. & N. R. Co., supra, and Turley v. A., K. & N. R. Co., 127 Ga. 594 (56 S. E. 748, 8 L. R. A. (N. S.) 695). As said by Chief
The evidence of the plaintiff in the present case authorized the inference that the defendant company was negligent in two particular respects: (1) in the failure of the conductor to give the necessary signal to stop the car, and the consequent failure of the motorman to diminish its speed so that it might be stopped at the plaintiff's destination; (2) in the failure of the motorman to reduce the speed of the car preparatory to turning the curve, whereby the violent jerk which threw the plaintiff off the car was probably caused. We think that these inferences might be authorized, without intending to intimate that the jury would be compelled to infer that the defendant company was negligent in either of these respects. If it be conceded that the defendant company was negligent in any respect, as alleged in the petition, the next question which arises is, whether the plaintiff could, by the exercise of ordinary care, have avoided the consequence of the defendant’s negligence. Nothing is better settled than that what does or does not constitute such negligence as will preclude a recovery is peculiarly a question for the jury. The rule more peculiarly applicable to the case now under consideration is that unless the danger is obviously great, the court can not hold, as a matter of law, that a given act constitutes such negligence as will preclude a recovery,. Suber v. G., C. & N. R. Co., supra. Coursey v. Southern Ry. Co., 113 Ga. 297 (38 S. E. 866); Mack v. Savannah & Statesboro Ry. Co., 118 Ga. 629 (45 S. E. 509); Augusta Southern R. Co. v. Snider, 118 Ga. 146 (44 S. E. 1005); M. & B. R. Co. v. Anderson, 121 Ga. 666 (49 S. E. 791); Tur