It appears from the allegations of the petition brought by T. H. Benton against the Southern Railway Company that the plaintiff, desiring to ship a bale of cotton over the line of the defendant railway company, carried the bale of cotton to the depot of the defendant and placed it on a platform adjoining the depot. After he had properly tagged the cotton for shipment, the agent of the defendant in charge of its depot required that he place the cotton in the warehouse in said depot “if said proposed transaction of transportation be consummated between plaintiff and defendant to their mutual benefit.” The agent, in the words of the petition, “invited and directed plaintiff to use its truck, the same being a device furnished by defendant for trucking cotton from the unloading wagon platform to its warehouse adjoining the same.” The plaintiff thereupon secured the truck, and when the agent of the defendant pushed the cotton on to the truck which the plaintiff was holding, the truck flew back, pushing the plaintiff off the platform on to the railroad tracks, inflicting on him certain described injuries. The gist of the complaint is that the truck, so furnished, was not reasonably suited for the purpose for which he was invited to use the same, in that it had no brace or device to hold the same stationary while placing a bale of cotton thereon; that it was too small and too light in weight for such purpose, and that from long and constant use it had become springy and difficult to hold stationary while placing a bale of cotton thereon. The trial judge overruled the general demurrer, to which ruling exceptions pendente lite were taken. The case proceeded to trial which resulted in a verdict for the plaintiff. Exceptions are taken to the overruling of the motion for new trial.
We are of the opinion that the petition was not subject to general demurrer. In addition to the above facts, the petition alleges, “that said station agent was in control and charge of said station, platform, warehouse, and premises of the defendant where said injuries were inflicted and as [such?] said agent was the alter ego of the defendant at said time and place,” It is in
Thus, in Savannah, Fla. & W. Ry. Co. v. Booth, supra, it was held: "Where a railroad company furnishes to one of its patrons a car to be used by him in loading freight to be delivered to it for
While we are thus of the opinion that the trial judge did not err in sustaining the petition as against general demurrer, however, we are convinced that the following charge of the trial judge was error, and requires the grant of a new trial. He charged: “I charge you, gentlemen of the jury, where one is assisting the servants or agents of a railroad company to facilitate his own business which is mutually beneficial to himself and to the railroad company, and where, under the contract or under the circumstances of the relationship of the parties, such person is not the servant of the railroad company, he is not charged with the same duty of knowing and observing defects or unsuitability of the machinery furnished for his use by such railroad company as its servants should be, and could be assumed to be, who undertook the duty of using the machinery.” In this charge the judge undertook to tell the jury that the plaintiff was not charged with the same duty of knowing and observing defects or unsuitability of machinery furnished for his use by the defendant, as the servants of the defendant would be, and could be assumed to be, who undertook the duty of using the machinery, and while it is true that in Davis v. Savannah Lumber Co., 11 Ga. App. 610 (6) (75 S. E. 986), this court used similar language in reversing the grant of a nonsuit, this fact does not make it the proper subject-matter of a charge to the jury in a case of the present character. Hunt v. Pollard, 55 Ga. App. 423 (190 S. E. 71), and cit. It is a well-recognized principle that what does or does not constitute exercise of ordinary care by a person in a given circumstance falls wholly within the province of the jury. While we are of the opinion that such a charge should not have been given to the jury at all, even so, in thus comparing the duty due by the plaintiff to the duty that would have been due by a servant of the defendant under similar circumstances, since the trial judge did not in the same connection explain what would have been the duty of the defendant’s servant with reference to knowing and observing defects or un
Judgment reversed.