17 Ga. App. 699 | Ga. Ct. App. | 1916
Lead Opinion
1. Where, in an action for personal injury, the case turns upon the question whether the party injured could, by the exercise of ordinary care, have avoided the injury, and the evidence does not show such conduct on his part as to amount to negligence per se, the question as to the exercise of ordinary care is for the jury. Dethrage v. City of Rome, 125 Ga. 802 (54 S. E. 654); Smith v. Smith & Kelly Co., 12 Ga. App. 19 (76 S. E. 770).
2. From the plaintiff’s testimony, it being a doubtful question as to whether he could, by the exercise of ordinary care, have avoided the alleged injuries, the case should have been submitted to the jury, and the granting of a nonsuit was therefore error. Cooper v. Raleigh & Gaston R. Co., 105 Ga. 83 (30 S. E. 731); Redding v. E. T., V. & G. R. Co., 74 Ga. 385; Central R. Co. v. Freeman, 66 Ga. 170; Steinhauser v. Savannah &c. Ry. Co., 118 Ga. 195 (44 S. E. 800); Central Ry. Co. v. Harper, 124 Ga. 836, 840 (53 S. E. 391); Hutchinson v. Greene County, 11 Ga. App. 103 (74 S. E. 53).
Judgment reversed.
Dissenting Opinion
dissenting. In my opinion, this ease is absolutely controlled by the ruling of the Supreme Court in Ludd v. Wilkins, 118 Ga. 525 (45 S. E. 429), and of this court in Central of Georgia Railway Co. v. Henderson, 6 Ga. App. 459 (65 S. E. 297), and the award of a nonsuit was proper.
