89 Tenn. 235 | Tenn. | 1890
This suit was brought to recover damages for injuries received by an employe in Georgia. The Georgia law governs.
There is in the transcript evidence tending to show negligence on the part of the defendant in error at the time of the injury.
The Court charged the jury: “ If the defendant’s negligence was the direct or proximate cause of the injury, the plaintiff can recover, even though the plaintiff' may have been at fault, if his fault was less in degree than that of defendant,” etc.
This was error. The rule as laid down in 58 Ga. R., 485, is ‘‘to make a prima fade case for recovery, a railroad employe, suing the company for a physical injury resulting from an act in which he participated, must prove either that he was not to blame or that the company was. • The latter, in reply, may defend successfully by disproving either proposition- — -that is, by showing that the plaintiff was to blame or that the company was not. If- both- were to blame, or if neither was, the plaintiff cannot recover.”
The Court should have so charged. The rule in Tennessee is not applicable to the case.
Reverse and remand.