59 Ga. App. 316 | Ga. Ct. App. | 1938
Lead Opinion
Mrs. Margaret S. Lee instituted suit against Southern Railway Company and Henry Busha to recover damages for the homicide of her daughter, who contributed to her support and upon whom she was dependent, alleged to have been caused by the negligent operation of a train of the defendant railway com
The charge of the court which contained the excerpts excepted to was as-follows: “The law declares that if the deceased daughter .of the plaintiff could have avoided to herself the consequences of the defendant’s negligence, if any, after it arose and was impending, or in the exercise of ordinary care she should have known of such negligence, if that appeared, then the plaintiff could not recover; so it becomes a question of fact for you to determine from all the facts and surrounding circumstances whether or not the deceased daughter of the plaintiff exercised ordinary care, or failed to do so. In this connection, gentlemen of the jury, I read to you the following law: ‘No person shall recover from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agent of the company are both at fault, the former may recover, but the damages shall he diminished by the jury in proportion to the amount of default attributable to him.’ ” . ..
The charge as here given does not contravene the rule of Americus &c. Railroad Co. v. Luckie, 87 Ga. 6 (13 S. E. 105), and the cases following it. See Columbus R. Co. v. Peddy, 120 Ga. 589 (4) (48 S. E. 149); Macon Ry. &c. Co. v. Streyer, 123 Ga. 279 (51 S. E. 342). In the Luclcie case the court charged as follows: “If, by the exercise of ordinary care and diligence, the plaintiff could have avoided the consequences to herself of the defendant’s negligence, she can not recover; but if both parties were at fault, and the alleged injury was the result of the fault of both, then notwithstanding the plaintiff’s negligence, she would be entitled to recover, but the amount of the recovery would be abated in proportion to the amount of the default on her part.” This charge was substantially portions of each of the two Code sections, 94-703, and 105-603. The court, in that case, .charged portions of these Code sections in direct connection.
The charge as given in the case sub judice that if both parties are at fault the complainant may recover but the damages shall be
In charging the law of contributory or comparative negligence whereby if both the plaintiff and the defendants are negligent the plaintiff may recover, if the plaintiff is othenvise entitled to recover, damages in proportion to the default attributable to the plaintiff, it is not error for the court to fail to instruct the jury that this rule applies provided the plaintiff was not guilty of a failure to exercise ordinary care to avoid the consequences to himself caused by the defendants’ negligence, or provided the injury Avas not caused by his consent or by his own negligence, where the court elsewhere charges these last three propositions of law. The error in charging the jury that if both parties are at fault the plaintiff may recover damages in a reduced amount in proportion to the amount of default attributable to him, and at the same time omitting to state that the plaintiff can recover damages in such reduced amount provided the plaintiff could not, in the exercise of ordinary care, have avoided the consequences to himself of the defendant’s negligence, is where the court, as it did in the Luclcie case, after charging the rule that if the plaintiff, by the exercise of ordinary care, could have avoided the consequences to himself of the de-
The court also, elsewhere in the charge, and this is not excepted to, instructed the jury that if the defendants and the plaintiff’s
Judgment affirmed.
Dissenting Opinion
The charge of the court excepted to and dealt with in the second, third, and fourth divisions of the majority opinion of the court was as follows: “The law declares that if the deceased daughter of the plaintiff could have avoided to herself the consequences of the defendants’ negligence, if any, after it arose and was impending, or in the exercise of ordinary care she should have known of such negligence, if that appeared, then the plaintiff could not recover; so it becomes a question of fact for you to determine from all the facts and surrounding circumstances whether or not the deceased daughter of the plaintiff exercised ordinary care, or failed to do' so. In this connection, gentlemen of the jury, I read you the following law: ‘No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agent of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default at