123 Ga. 90 | Ga. | 1905
(After stating the facts.) 1, 2. Plaintiff in error insists that as the injury took place in the State of Alabama, and ■no statute of that State is pleaded or shown, the law of this State requiring extraordinary diligence from carriers of passengers did not apply; that such was not the rule at common law, and that no presumption of negligence arose from proof of injury. The injury having occurred in the State of Alabama, and no statute of that State having been pleaded or shown, the presumption is that the common law is of force there. Selma R. Co. v. Lacy, 43 Ga. 461. At common law, common carriers of freight were insurers, and no excuse availed them in cases of loss, unless it was occasioned by the act of God or the public enemies. In determining the status of carriers of passengers the courts distinguished their position ifrom
At the time of the adoption of the common law into this State, the authorities cited will show, extraordinary care was required on the part of common carriers of passengers, and it has been often held that proof of injury to a passenger in consequence of the breaking or failure of a vehicle, roadway, or other appliances owned or controlled by the carrier or used by it in making the transit, or the manner of their operation, raised a presumption of negligence against the carrier. This construction was placed upon the common law by the Supreme Court of this State, in Central Railroad v. Freeman, 75 Ga. 331, 338, and in Augusta & Summerville R. Co. v. Randall, 79 Ga. 304 (9), 314. In the latter case it is said (p. 314): “This presumption that, where the plaintiff has shown that he was a passenger and was hurt or damaged by the running of the railroad company’s trains or machinery, the company was negligent, is a common-law presumption. It is no new thing because it was not enacted in this State until the act of 1855. It obtained at common law, and had been the law of Eng
3-5. “The degree of diligence due from a common carrier [of passengers] to a passenger is extraordinary, no matter what means of conveyance may be- employed.” Ball v. Mabry, 91 Ga. 782; Thompson on Carriers of Passengers, § 20, p. 234; I. & G. N. Ry. Co. v. Irvine, 64 Tex. 529 (3); Fetter on Carriers of Passengers, § 16, p. 32; Edgerton v. New York etc. Railroad, 39 N. Y. 227; Dunn v. Grand Trunk Ry. Co., 58 Maine, 187, 196; Indianapolis R. Co. v. Beaver, 41 Ind. 493; Chicago & Alton R. Co. v. Flagg, 43 Ill. 364; Ohio & Miss. R. Co. v. Dickerson, 59 Ind. 317; Indianapolis & St. Louis R. Co. v. Horst, 93 U. S. 291, 296; Ohio & Miss. R. Co. v. Muhling, 30 Ill. 9 ; Schilling v. Winona etc. Railroad (Minn.), 68 N. W. 1083. Extraordinary diligence, as the term is defined and used in this State, means “ that extreme care and caution which very prudent and thoughtful persons exercise under like circumstances.” East Tenn., Va. & Ga. Ry. Co. v. Miller, 95 Ga. 738; Civil Code, § 2899. The standard or degree of diligence required of a carrier of passengers with respect to a passenger is, therefore, extraordinary diligence. But what acts will meet this requirement must necessarily depend upon the circumstances of the particular case. See Macon Street Ry. Co. v. Barnes, 113 Ga. 218, 219. What extraordinary diligence in running a freight-train would require to be done may differ from what would be required in operating a passenger-train. Thus it has been held that a passenger who sees fit to travel on a freight-train takes the risk of the usual and necessary jolts properly incident to handling and running such trains. Ball v. Mabry, 91 Ga. 781 (4), supra; Crine v. E. T. Ry. Co., 84 Ga. 651; Central Railroad v. Smith, 76 Ga. 209. A freight-train is primarily for
Some of the requests to charge in the case now under consideration were based upon the decision in Crine v. Ry. Co., supra. They constituted only a part of the charges which were approved in that case, and omitted any reference to the necessity for the use of extraordinary diligence. Exception was taken, however, to the fact that the presiding judge gave no charge in respect to the character of the train, and its usual and necessary modes of operation, in submitting to the jury the question of whether or not the defendant used extraordinary diligence, although requested
6. The court instructed the jury, in effect, that if by the exercise of ordinary care the plaintiff could have avoided the consequences to himself of the defendant’s negligence, he would not be entitled to recover. Ordinary care, as has been said above in regard to extraordinary care, may require one thing at one time and under one set of circumstances, and a different thing at another time and under different circumstances. One of the requests to charge was defective in that it made the question of what would be ordinary care on the part of the plaintiff dependent entirely upon the character of the train and the manner in which it was run, operated, and handled at stations where it was usual to receive and discharge freight. The character' of the train and its methqd of operation, as known to the plaintiff, were circumstances for the consideration of the jury in determining whether he exercised ordinary care or not. But ordinary care is a matter affecting the individual who must use it, and it will not do to say that the standard of diligence‘on his part depends alone upon the character of the train, or what the usual mode of operating it is, without regard to his knowledge or whether the jerk was necessary or usual.
If the plaintiff was injured by the negligence of the defendant, he was bound to lessen the damages as far as practicable by the use of ordinary care and diligence. Civil Code, §3802. But it would have been error to charge the jury that it was his duty to do some particular thing for that purpose, or to say to them' that if he could have “ mitigated his suffering by having an operation performed,- or other surgical treatment, and could have relieved himself partly or wholly from suffering, it was his duty to take such care.” His duty was to use ordinary care and diligence to lessen the damages. But the court could not tell the jury what particular acts ordinary care would require him to do. On this subject compare Watson on Damages for Personal Injuries, § 189; Blate v. Third Ave. R. R., 44 N. Y. S. C. App. Div. 163; Collins v. City of Council Bluffs, 32 Iowa., 324 (3).
8. The grounds of the motion for new trial which excepted to the refusal to permit certain questions to be asked of witnesses do not show what answers were expected or would have been given.
Judgment reversed.