136 Ga. 852 | Ga. | 1911
1. The plaintiff’s suit being for the recovery of damages for injuries alleged to have been sustained in consequence of being ejected from a car of the defendant company at a point other than his destination and at a place which, according to the allegations of the petition, was unsafe and dangerous, and there being evidence tending to support such allegations, the court erred in giving to the jury a charge which excluded from their consideration the alleged negligence of the defendant in carrying plaintiff beyond the street which he alleged was his intended destination.
2. The court charged the jury as follows: “If a witness has been impeached by proof of contradictory statements, the contradictory statements ought to be rejected, that is, the statements delivered by the witness on the stand which are in conflict with any statement heretofore made, you would reject that, and the balance of the testimony of that witness is to receive such credit as you think it is entitled to.” The instruction contained in this portion of the charge was confusing; and if it be construed, as it very probably was construed, by the jury, as requiring them to find that as between sworn testimony and previous contradictory statements the sworn testimony was false and therefore to be rejected, the rule submitted for the guidance of the jury was not sound.
3. Where the plaintiff in his petition alleged that he was a passenger who had paid his fare, and predicated his right to recover on the violation by the company of the extraordinary care due to passengers, he could not recover if it was shown by the evidence that he was a mere trespasser, and it was not error for the court to give the jury instructions embodying this rule.
4. Where a plaintiff alleges that he was a passenger on a ear and was carried beyond the point where he had informed the conductor that he intended to alight, and was then ejected from the car in the dark, and, as he started to leave the place where he was put off, fell over an embankment of the railway company and was hurt; and where the plaintiff’s evidence tended to substantiate these allegations, and the defendant introduced in evidence the petition in a former suit which had been brought by the plaintiff and dismissed, in which it was alleged that he was pushed from the ear by the conductor and fell over the embankment, this did not authorize the following charge, which was excepted to: “If you believe from the testimony that the conductor pushed the plaintiff off the car, and that this push of the conductor caused him to fall dowp the bank, against the bank, and that he got hurt, he can not recover in this case.”
5. Exception was taken to the following charge: “If you believe that the plaintiff was hurt at substantially the place he says he was hurt, he can recover, but if he was hurt at substantially another place, substantially a different location from that claimed by him, he can not recover in this case.” The word “claimed” as here used is ambiguous, as the court may have had reference to the allegations of the petition or simply to the testimony of the plaintiff. Besides, to warrant the charge there should be evidence tending to show such a substantial difference in loca
Judgment reversed.