7 S.E. 83 (Ga. 1888), Travelers' Ins. Co. v. Jones

Citation:7 S.E. 83, 80 Ga. 541
Opinion Judge:BLECKLEY, C.J.
Party Name:TRAVELERS' INS. CO. v. JONES.
Attorney:F. H. Harris, for plaintiff in error. Smith & Borchardt, for defendant in error.
Case Date:March 28, 1888
Court:Supreme Court of Georgia
 
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Page 83

7 S.E. 83 (Ga. 1888)

80 Ga. 541

TRAVELERS' INS. CO.

v.

JONES.

Supreme Court of Georgia

March 28, 1888

Syllabus by the Court.

During a dark and rainy night, for a person with two packages in his hands or arms, to attempt, by choice, to pass over a trestle which he knows to be dangerous, other ways of travel being open to him, is, on his part, "voluntary exposure to unnecessary danger, hazard, or perilous adventure," notwithstanding this was his usual way of travel, his usual route to his home, and he had been going that way for 10 years, and many others went the same way.

An irrelevant charge by a justice of the peace is not obligatory upon the jury; and when the plaintiff in error has caused it to be given as pronounced obligatory, a reversal here of a judgment granting a new trial is not to be expected, though the verdict is apparently correct. Let the prevailing party take the consequences of a new trial which, whatever may be the substantial merits of the case, is justified by an illegal charge prompted by his own counsel.

Error from superior court, Glyner county; ATKINSON, Judge.

F. H. Harris, for plaintiff in error.

Smith & Borchardt, for defendant in error.

BLECKLEY, C.J.

Jones had an accident policy, commencing to operate in June, 1884, and continuing of force for one year. In January, 1885, he undertook to pass from some point in the city of Brunswick to his house in that city; and in walking along a railroad track he stepped upon a trestle several feet in length, consisting of cross-ties elevated some six or eight feet above the bottom of a ditch, and requiring several steps (each from one cross tie to another) to pass over it. The night was dark and rainy. He had in his arms or hands two packages, and while endeavoring to pass, he made a misstep, and fell through and hurt himself seriously. The contract contained a stipulation exempting the company from liability for injuries occasioned by "voluntary exposure to unnecessary danger, hazard, or perilous adventure." The defense was that this injury was within the exemption; and the evidence showed that Jones knew the place was dangerous; and all the witnesses regarded it as dangerous. There were other ways to reach his home; but that was the usual way he traveled, and many others traveled that way. He had been going that way for 10 years. It was his usual route home; but he...

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