91 Ga. 344 | Ga. | 1893
It was therefore incumbent upon the court to present the issue thus made to the jury. This he did with perfect fairness to the plaintiff, expressly instructing them that if the plaintiff, as he claimed, got upon the car with the expectation of paying fare, and had not paid it simply because it had not been demanded of him, then his status and rights as a passenger would be exactly the same as though payment had actually been made, the plaintiff being under no obligation to seek the conductor and tender him fare. On the other hand, the court correctly instructed the jury that should they believe the plaintiff boarded the car with no intention of paying fare, and endeavored to secrete himself from observation so as to avoid detection, he would be a mere trespasser, unless his presence was actually known to the company’s servants and assented to by them either directly or by implication. The authorities are numerous'to this effect, and we fail to detect any error in this statement of the law. • We think, furthermore, it was entirely proper to add that the jury would not be authorized to infer any implied assent to the plaintiff’s
In the present case, the' negligence of the company,
In presenting to the jury the issues to be determined, the trial judge evidently overlooked this aspect of-the case as constituting a separate and distinct ground of liability. While he instructed the jury in general terms to “ see whether or not the company exercised that amount of diligence which this child had the right to expect from this company,” he did not specifically call their attention to the fact that in the case of a child of tender years, the exercise of ordinary and reasonable care would comprehend greater diligence than that to which
The court charged the jury, in effect,.that should they believe the plaintiff' while a passenger, and without fault on his part, was thrown off the platform by a jerk of the car, even though the negligence of the company in driving at an unusual speed was slight, he would be entitled to recover. This instruction, we think, was more favorable to the plaintiff' .than the evidence warranted. According to his own testimony, the plaintiff, at a late hour in the night, boarded the car between two street crossings, while the car was in motion, and without giving notice of his intention to do so. There is no evidence to show that the company’s servants knew he had boarded the car, but there is much evidence to establish the fact that his presence on the car in a situation of peril was entirely unknown to them, and if this be true, they certainly could not have assented thereto.
After a careful and laborious examination and study of the entire record, we are satisfied the verdict could not properly have been otherwise. Indeed, it is quite improbable that a jury would make a wrong finding in favor of a corporation against a child of tender years who has been so sadly maimed for life.
There are, perhaps, some slight verbal inaccuracies in ■the charge of the court, and it might, as indicated in a preceding division of this opinion, have been in some respects more full and complete. It is proper to remai’k, however, that the court was not requested to instruct the jury more in detail; and as to such inaccuracies as