Atlanta Ry. & Power Co. v. Gaston

• Decision Date: 12 August 1903
• Citation: 45 S.E. 508,118 Ga. 418
• Parties: ATLANTA RY. & POWER CO. v. GASTON.
• Court: Georgia Supreme Court

45 S.E. 508

118 Ga. 418

ATLANTA RY. & POWER CO. v. GASTON.

Supreme Court of Georgia

August 12, 1903

Syllabus by the Court.

1. The evidence as to negligence was conflicting, but where there was testimony from which the jury could have found that both parties were in the exercise of ordinary care, and that the injury was the result of a casualty, it was error not to charge that the defendant could relieve itself of the statutory presumption by showing that neither party was to blame, and that the damage was the result of a pure accident.

Error from City Court of Atlanta; A. E. Calhoun, Judge.

Action by James Gaston against the Atlanta Railway & Power Company. Judgment for plaintiff, and defendant brings error. Reversed.

Payne & Tye, for plaintiff in error.

J. C Clarke and Westmoreland Bros., for defendant in error.

LAMAR J.

The plaintiff was injured in a collision between a street car and his wagon, occurring at the intersection of two narrow streets. The court charged on the doctrine of comparative negligence, and also that "the defendant might relieve itself of the statutory presumption by showing that its agents exercised all proper care and diligence to avoid the injury, or that the damage was caused by the negligence of the plaintiff, or that the plaintiff could have, by the exercise of ordinary care, avoided the injury caused by defendant's negligence; and on either or all of these grounds the defendant may rest its defense." In this and the general charge the judge omitted any statement as to the effect of finding that the injury was occasioned by casualty where neither party was at fault. The defendant in error insists that this omission does not require the grant of a new trial, since there was no evidence warranting a verdict that the injury was occasioned by an accident. The plaintiff contended that he approached the track at a walk, in the exercise of ordinary care, and failed to see the car because the building on the corner intercepted the view; and further claimed that the car approached at a high rate of speed without ringing the gong. The testimony of the motorman and several passengers tended to show that the gong was rung that the speed was proper; that a lookout was kept; and that the plaintiff was driving at a high rate of speed. There was, therefore, evidence from which the jury could have found that the driver and the motorman were both in the exercise of ordinary...