Louisville & N. R. Co v. Mcgarity

• Decision Date: 14 February 1913
• Citation: 77 S.E. 630,139 Ga. 472
• Parties: LOUISVILLE & N. R. CO. et al. v. McGARITY.
• Court: Georgia Supreme Court

77 S.E. 630

139 Ga. 472

LOUISVILLE & N. R. CO. et al.

v.McGARITY.

Supreme Court of Georgia.

Feb. 14, 1913.

(Syllabus by the Court.)

1. Negligence (§ 67^*)—Contributory Negligence—Duty to Avoid Danger.

The rule that if the plaintiff, by ordinary care, could have avoided the consequences to himself, caused by the defendant's negligence, he is not entitled to recover, is applicable to a case in which, although the negligence of the defendant may not have been actually discovered by the plaintiff, yet it was discoverable by him by the exercise of ordinary care. Central of Georgia R. Co. v. Attaway, 90 Ga. 656, 16 S. E. 956; Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708, 39 S. E. 306, 54 L. R. A. 802; Williams v. Southern R. Co., 126 Ga. 710, 55 S. E. 948. Accordingly, it was not erroneous to charge: "On the other hand, I charge you, if the company's servants in charge of the train going into the passing track could have, in the exercise of ordinary care, discovered, as they approached said freight car. that the same was in a position to be struck by the engine, in time to stop the engine and prevent striking the car, the company cannot recover. even though the freight car was placed where it could be hit by a passing train. If this bethe truth of the case, you should find for the defendant."

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 90, 91; Dec. Dig. § 67.^2-*]

2. Trial (§ 256*)—Instructions—Requests.

After charging as indicated by the preceding note, it was not cause for a new trial, in the absence of appropriate request, that the judge did not, in connection therewith, further give in charge to the jury the latter half of Civ. Code 1910, § 2781, which is as follows: "If the complainant and the agents 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 fault attributable to him." Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194 (6), 33 S. E 961; Savannah Electric Co. v. Crawford, 130 Ga. 421, 60 S. E. 1056; Glaze v. Josephine Mills, 119 Ga. 261, 46 S. E. 99; Godwin v. A. C. L. R. Co., 120 Ga. 747 (3), 48 S. E. 139; Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (12), 54 S. E. 110; Branch v. Bishop, 135 Ga. 110 (2), 68 S. E. 1021.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]

3. Motion for New Trial—Grounds—Verdict—Evidence.

Other grounds of the motion for new trial complain that the verdict was contrary to the charge of the court and the evidence, etc. These are merely elaborations of the general grounds, which complain that the verdict was contrary to law, and without evidence to support it, etc. Upon a careful consideration it appears that there was sufficient evidence to support the verdict.

Error from Superior Court, Walton County; C. H. Brand, Judge.

Action by the Louisville & Nashville Railroad Company and others against R. S. Mc-Garity. Judgment for defendant, and plaintiffs bring error. Affirmed.

The Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company, as lessees of the Georgia Railroad & banking Company, operating the railroad of the latter, instituted an action for damages against R. S. McGarity. The damages sought to be recovered were based on an alleged injury to a locomotive engine while drawing a freight train on the railroad track. The injury resulted from a collision with a freight car standing on a side track. The side track was at a station on the railroad at which there was no agent, but was a place where the plaintiffs were accustomed to deliver freight in car load lots to consignees of goods, by placing the cars on side tracks constructed for the purpose, and allowing the consignees to take the goods directly from the cars. The main line of the railroad ran east and west. Immediately south of the main line was a side track, connected with the main line by means of switches at each end, which was used as a "passing track" for the accommodation of trains when meeting or passing each other. Immediately south of the "passing track, " and connected to it by means of switches at each end, was a side track used for the purpose of delivery of freight in car load lots, as above indicated. The defendant was accustomed to receive freight in car load lots delivered on the side track last above mentioned. A car consigned to a firm of which defendant was a member was left on the track by the plaintiffs in such...