Augusta Ry. & Elec. Co. v. Weekly

• Citation: 52 S.E. 444,124 Ga. 384
• Parties: AUGUSTA RY. & ELECTRIC CO. v. WEEKLY.
• Decision Date: 20 November 1905
• Court: Supreme Court of Georgia

52 S.E. 444

124 Ga. 384

AUGUSTA RY. & ELECTRIC CO. v. WEEKLY.

Supreme Court of Georgia

November 20, 1905

Syllabus by the Court.

In a suit to recover damages for personal injuries alleged to have been sustained by reason of negligence on the part of the defendant, the plaintiff must recover, if at all, upon proof establishing the specific acts of negligence alleged in his petition.

Even in a case to which the doctrine of "res ipsa loquitur" is applicable, it is erroneous for the court to charge the jury that a given state of facts either constitutes, or affords prima facie proof of, negligence, when there is no statute expressly declaring that this is true as matter of law.

The charge of the court being in certain respects inaccurate and prejudicial to the excepting party, a new trial is ordered.

Error from City Court of Richmond County; W. F. Eve, Judge.

Action by Joseph Weekly against the Augusta Railway & Electric Company. Judgment for plaintiff. Defendant brings error. Reversed.

Wm. H Barrett and Boykin Wright, for plaintiff in error.

C Henry Cohen and Bryson Crane, for defendant in error.

EVANS J.

The plaintiff below, Joseph Weekly, brought an action for damages against the Augusta Railway & Electric Company, alleging that he had received serious injuries by coming in contact with a live wire belonging to the defendant company, which was lying across a public thoroughfare in the city of Augusta. The trial resulted in a verdict in favor of the plaintiff, and we are called on to determine whether or not the company's motion for a new trial should have been granted.

1. Our attention is called, in the first place, to the fact that the investigation of the case was not confined to the issues raised by the pleadings. The plaintiff alleged in his petition that the breaking of the wire and the falling thereof to the ground were due to the negligence of the company in its maintenance of the wire, and that "the falling of said wire to the ground, as aforesaid was due to the negligence of the said defendant in creating negligently, and maintaining, a dangerous condition that made the injury to petitioner possible." No complaint was made that the company did not exercise due diligence in discovering that the wire had fallen, or that the company was negligent in not promptly cutting off the deadly current with which it was charged, or that the company had failed to take proper steps to remove the wire from the street after it fell. The court declined a written request to give to the jury a charge presented in behalf of the company, wherein the specific acts of negligence upon which the plaintiff relied for a recovery were correctly stated and attention directed to the fact that a negligent failure to cut off the current was not alleged, and in which the proposition was laid down that no acts of negligence other than those alleged in the petition could be proved or considered by the jury. The court did, in general terms, instruct the jury that if they should find "the defendant was guilty of the acts of negligence set out in the declaration," and injury to the plaintiff resulted therefrom, while he was in the exercise of ordinary care and diligence, he would be entitled to recover. But nowhere in the charge did the court undertake to inform the jury what were "the acts of negligence set out in the declaration," and, in charging the jury as to what would constitute due negligence on the part of the company, instructed them as to the duty resting on the company not to permit a wire, after it had fallen, to remain in a dangerous condition for an unreasonable length of time. Indeed, throughout the entire charge the court made the liability of the company depend, not alone upon the question whether or not it had exercised all ordinary and reasonable care in "constructing, maintaining, and inspecting its wires," but upon the further inquiry whether or not it had, "after the fall, exercised such care in repairing same."

2. A charge of which the plaintiff in error makes special complaint was in the following language: "If the jury believe that a horse attached to a brewery wagon stepped on a wire belonging to the Augusta Railway & Electric Company and fell to the ground in a dying condition, and the driver was thrown to the ground, receiving...