128 Ga. 627 | Ga. | 1907
In her petition against the Southern Railway Company, to recover damages for injuries alleged to have been susiained by her while a passenger of defendant’s train, Mrs. E. Y.
From 'this brief reference to the evidence it will be seen that there was a conflict as to the defendant’s liability. Negligence and diligence are always questions of fact for the jury under appropriate instruction by the court upon the law. When it was shown that the plaintiff was a passenger, and sustained injuries caused by the running of the defendant’s locomotive and cars, the plaintiff made out a prima facie case, and was entitled to recover unless the evidence showed, (1) that the plaintiff’s negligence caused the injury; or, (2) that the railroad company was not negligent; or, (3) that if the railroad company was negligent the plaintiff could have avoided the consequences to herself of that negligence by the exercise of ordinary care. In its motion for a new trial complaint is made that the court entirely omitted to charge the principle involved in the Civil Code, §3830, that if the plaintiff by ordinary care could have avoided the consequences to herself caused by the defendant’s negligence, she was not entitled to recover. This principle is not alluded to in the charge, and indeed the court certified that he “nowhere charged the language or substance of section 3830.” The defendant’s plea and evidence not only made an issue as to defendant’s own negligence, but also as to plaintiff’s diligence. The law denies a plaintiff the
Judgment reversed.