132 Ga. 812 | Ga. | 1909
We deem it necessary to discuss only the ruling made in the 3d headnote. The plaintiff’s petition alleged, that, at a place where two railroads crossed each other, a train on which she was a passenger was running upon one line when an engine approaching on the other road ran into it, causing an injury to the plaintiff. The ground of negligence alleged was that the engineer of the defendant company on the engine which caused the injury did not stop within fifty feet of the railroad crossing and did not approach it slowly, as required by law, but approached it at a high and dangerous speed, not making or attempting to make any stop whatever until the engine was run against the passenger-train in which the plaintiff was seated. It was alleged that the engineer was “grossly negligent” in this regard, and ran his engine “recklessly and without regard to law.” The evidence on behalf of the plaintiff Showed that the collision occurred at the crossing; that the train on which the plaintiff was a passenger was approaching it, as was also the engine of the defendant, and that the latter ran against the train and caused the injury. The train on which the plaintiff was a passenger was being backed over the crossing, an employee of the company, who described himself as a porter, being on the rear end with the conductor. The engineer was a witness for the plaintiff. On cross-examination ha testified: “I suppose .1 could see the Southern Bailroad as far as. the Southern Bailroad could see me.” On re-examination he testified that the rear end of his train was from 240 to 300 feet dis-
Various definitions have been given of negligence, among them being that it is the failure to exercise due care. Our own code declares that “Ordinary diligence is that care which every prudent man takes of his own property of a similar nature. The absence of such diligence is termed ordinary neglect.” Civil Code, §2898. “Extraordinary diligence is that extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property. The absence of such diligence is termed slight neglect.” §2899. “Gross neglect is the want of that care which every man of common sense, how inattentive soever he may be, takes of his own property.” §2900. These are different degrees of negligence as recognized in the law of this State. Ih some jurisdictions objection has been made to the use of the qualifying words, slight, ordinary, and gross, as applicable to negligence, and the courts have preferred to use the term ordinary neglect or negligence as applicable to a want of due care under the circumstances, maintaining that, at last, ordinary diligence, in the light of the circumstances, is all that is required of any man. Generally a court-can not instruct a jury that certain acts constitute negligence per se. But therejis an exception in cases where a valid statute or municipal ordinance requires the performance or nonperformance of certain acts. Atlanta &c. R. Co. v. Hudson, 123 Ga. 108 (51 S. E. 29); Southern Cotton-Oil Co. v. Skipper, 125 Ga. 368 (8), (54 S. E. 110). It has'been declared that “The omission of specific acts of diligence prescribed by statute or by a valid municipal ordinance is negligence per se.” Central R. Co. v. Smith, 78 Ga. 694 (3 S. E. 397). See also 5 Words & Phrases, 4764. This recognizes and characterizes such an omission as being negligence. Mere negligence and wilfulness are not synonymous terms. In Milwaukee & St. Paul R. Co. v. Arms, 91 U. S. 489 (23 L. ed. 374), where there was a head-end collision between railroad trains, the court charged the jury that if they found that the injury “was caused by the gross negligence of the defendant’s servants controlling the train, you may give to the plaintiff punitive or exemplary damages.” Mr. Justice Davis, delivering the opinion for the Supreme Court of the United States,
In Savannah Electric Co. v. Jackson, 132 Ga. 559 (64 S. E. 680), the plaintiff brought suit against the defendant to recover damages for a personal injury, alleging that the car was running at a high, unlawful, and dangerous rate of speed on the public street of a city. The ordinance prohibiting the running of street cars at that point at a speed in excess of ten miles an hour and providing a penalty for so doing, was introduced in evidence, and there was testimony tending to show its violation. Nevertheless this court said: “There is no evidence in the record sufficient to show wilfulness, recklessness, and wantonness on the part of the employees of the defendant; and the charge should have omitted any reference thereto, and the presiding judge should not in that connection have used the expressions above quoted.” The fact that the violation of a municipal ordinance in regard to speed is negligence, and not alone sufficient to show wilfulness, wantonness, or recklessness, but that to authorize a charge on that subject there must be some evidence in addition to the mere negligence arising from such violation, was recognized. What is here said does not conflict with the rule in regard to injury to trespassers, in the light of the discussion in Southern Ry. Co. v. Chatman, 124 Ga. 1026 (53 S. E. 692, 6 L. R. A. (N. S.) 283), and other cases of like character.
A failure to comply with a statutory requirement as to the giving
The Supreme Court of Alabama has more than once discussed this distinction. In Ala. Great So. R. Co. v. Linn, 103 Ala. 134 (15 So. 508), in an action against a railroad company for an injury to a team at a crossing, which was not a public, crossing, but was used as a matter of convenience without objection on the part of the railroad company, where the evidence showed no more than that defendant’s servants failed to give the signal required by the statute in passing through a town or village, it was held to be error to submit to the jury the question of “wanton negligence.” It was said: “The failure of the employes of a railroad company to comply with the statutory requirements by giving signals when passing through any village, town, or city (Code, §1144), or by not observing the rate of speed fixed by law, makes the railroad company guilty of no more than simple negligence.” And in Alabama Great So. R. Co. v. Hall, 105 Ala. 599 (17 So. 176), it was said: “In an action to recover damages for injuries alleged to have been inflicted by reason of negligence, before the person charged with the negligence can be held guilty of wilful or wanton negligence the evidence must show that he knew his conduct would inflict injury, or that, on accoufit of the-attendant circumstances which were known to him, .or with knowledge of which he was chargeable, the inevitable or probable consequence of his conduct would be to inflict injury, and with reckless indifference to the consequences of such conduct he committed the act, or omitted to do his duty to avoid the threatened injury.”
It will, not do to say that the jury are the judges of whether such conduct exists. They are not the judges of it, where there is no evidence of it., Issues of fact are to be left to the jury, where the
Judgment reversed.