Savannah Electric Co. v. Crawford, 130 Ga. 421

Savannah Electric Co. v. Crawford

130 Ga. 421 | Ga. | 1908

Lumpkin, J.

(After stating the foregoing facts.)

1, 2. The first question presented by the amended motion for a new trial is whether the court erred in charging the jury that, if they found that the plaintiff was entitled to recover, he would be entitled to recover such amount as they should determine was reasonable and necessarily incurred as the direct and proximate result of the collision; and in failing to charge the law in regard to the apportionment of damages if both parties were at fault, but the fault of the plaintiff was not such as to bar a- recovery. It has been held several times, in suits of this character, that where the law upon the question of negligence, as it affects the plaintiff’s right to recover and the right of the defendant, to have a .judgment rendered in its favor, has been substantially and fairly submitted to the jury, and where the law in reference to contributoiy negligence (comparative negligence affecting the amount of the recovery) is not, under the contentions of the parties, directly involved in the case, this court will not reverse the judgment of the lower court, overruling a motion for a new trial, because the court failed to charge the law applicable to such negligence, when there was no request to charge upon that subject. Southern Ry. Co. v. Coursey, 115 Ga. 602 (41 S. E. 1013) ; City of Atlanta v. Alexander, 80 Ga. 637 (6 S. E. 25); Daniels v. Intendant and Wardens of Athens, 55 Ga. 609 (7) ; Martin v. Johnson, 118 Ga. 573 (45 S. E. 446) ; Ingram v. Hilton & Dodge Lumber Co:, 108 Ga. 194 (6), (33 S. E. 961).

Confusion sometimes arises from the use of the expression “ contributory negligence.” In most jurisdictions contributory negligence is used as referring to such negligence on the part of the plaintiff, contributing to causing the injury to himself, as will prevent a recovery by him. In this State we have a doctrine, which is sometimes called that of comparative negligence, under which,- if the plaintiff is not without fault, but his negligence does not amount to such a failure to use ordinary care as will prevent a recovery, he may recover damages of the defendant, in a proper case, but the amount of his recovery will be reduced in proportion to the amount of default attributable to him. In this sense the term “contributory negligence” will generally be found to have *425been used in Georgia, rather than in the sense of negligence which will prevent a recovery.

The pleadings in this case did not make any distinct issue as to ■comparative negligence and apportionment of damages. It may be .gravely doubted whether the evidence presented -any such theory. Certainly, under the decisions above cited, it was not so involved in the case as a distinct and essential issue that the court was re■quired to charge on the subject without a request. In his order •overruling the motion for a new trial, he. stated that no request ■oral or written was made for such a charge. The issue of liability •or no liability, which was directly involved, was fully covered' by 'the charge, and also the effect of "the negligence of one party or that of the other upon that issue. The presiding judge not only instructed the jury as to the theory of accident, of the absence of ■negligence on the part of the defendant, and of failure to use ordinary care on the part of the plaintiff, but also informed them that if both parties were equally at fault, or if the plaintiff was more at fáult than the defendant’s employee, there could be no recovery. What might be termed the incidental or collateral question of reducing or mitigating the damages by reason of some contributing negligence on the part of the plaintiff, which was not sufficient to bar a recovery, was not, under the pleadings and evidence, such a direct and essential issue that a failure to charge in regard to it without request will require a reversal. -Where the evidence authorizes a charge on that subject, it is the better practice for .the presiding judge to give it. It -might not have been •error to have done so in the present case; but when he omitted to do so, and his attention was not in any way called thereto, or any ■request made on the subject, this will not require a new trial.

The question here presented is not the same as that raised where the -existence or non-existence of negligence on the part of the plaintiff may affect the right of recovery; or that in cases where the court charged on the idea that an employee (other than one in the service -of a railroad company) must be wholly free from negligence in order to recover at all, if he had alleged in his petition .that he was without negligence. As to the latter class of decisions, see the remarks made in Southern Cotton Oil Co. v. Skipper, 125 Ga. 368, 371 (54 S. E. 110). See also Central of *426Georgia Ry. Co. v. Brandenburg, 129 Ga. 115 (58 S. E. 658). But those rulings are not directly involved here.

3, 4. A written report made by a conductor to the company was the best evidence of its own contents. If it appeared that a witness was speaking from his memory refreshed by having had such a report exhibited to him by counsel for the-defendant, and that such report was in court, probably the presiding judge might, on application by adverse counsel, have required it to be submitted to such counsel for inspection. But no such application was made; nor does it appear that any notice to produce the paper was served. It was therefore erroneous to allow an inquiry as to its contents to be made, over objection. And this was not altered by calling: such inquiry one as to the substantive fact of whether the witness had made a report to the.company which contained any such statement as that to which he was testifying, rather than one as to the contents of the report. Under the facts of the case, however, we do not think that this error was such as to require the grant of a new trial. The only purpose which the evidence could have had was to impeach of discredit the testimony of the conductor as a witness. He testified that the gong was rung “from 31st street until we got to the place where the accident occurred, as any ordinal ear would ring the gong.” After the question and answer on cross-examination to which objection was made, counsel for the defendant, on the redirect examination of the witness, appeared to have exhibited the report to the witness and called forth from him a statement of what it contained, in these words: “This is my report .made to the company. That is signed by me. I see the language I put there [witness looking at report]. I reported to-the company that the motorman kept ringing his gong, but net from 31st street. I didn’t state that he kept ringing it from 31st street, but I stated that he kept ringing his gong.” There is ne material or substantial difference in effect between the evidence thus brought out by counsel for the defendant as to the contents, of the report, and that elicited by counsel for the plaintiff. In answer to the question of the latter, the witness said that he did. not make a report that the gong was being rung for four or four and a half minutes, — not exactly. In answer to the questions of the former, he said that he had reported to the company that the motorman kept ringing the gong, but not from 31st street. In *427another part of his evidence he stated that 31st street was five blocks and a half distant from where the machine was struck. Under these facts, the ruling stated will not require a reversal.

Judgment affirmed.

All the Justices concur.