Brunswick & W. R. Co v. Gibson

• Decision Date: 15 November 1895
• Citation: 97 Ga. 489,25 S.E. 484
• Court: Georgia Supreme Court
• Parties: BRUNSWICK & W. R. CO. v. GIBSON.

97 Ga. 489

25 S.E. 484

BRUNSWICK & W. R. CO.

v.GIBSON.

Supreme Court of Georgia.

Nov. 15, 1895.

Railroad Companies—Street Accident—Negligence—Contributory Negligence— Instructions.

1. The instructions of the court as to the law of contributory negligence, taken all together, were substantially in accord with the rule laid down in Railroad Co. v. Luckie, 13 S. E. 105, 87 Ga. 6, and were correct The request to charge on this subject was covered by the charge given.

2. It appearing that the deceased was killed by a locomotive moving backwards upon a railroad track running longitudinally through a public street in a city, and the declaration expressly alleging that the defendant company was negligent in failing "to have a flagman or some other person standing on the rear end of said locomotive while it was being run backwards as aforesaid, " there was no error in submitting to the jury for their determination the question whether or not such failure was an act of negligence.

3. The requests to charge, except the one above referred to and one other, which was of no serious importance, were properly refused, because, in effect, their purpose was to obtain instructions from the court that such and such acts, not per se negligent in law, would be in fact negligent.

4. The evidence warranted the verdict, and, this being a second finding in the plaintiff's favor, this court will not overrule the discretion of the trial judge in refusing to set it aside.

(Syllabus by the Court.)

Error from superior court, Glynn county; J. L. Sweat, Judge.

Action by Lucretia Gibson against the Brunswick & Western Railroad Company to recover for the death of her son. From a judgment for plaintiff, defendant brings error. Affirmed.

Goodyear, Kay & Brantley, for plaintiff in error.

Symmes & Bennet, for defendant in error.

SIMMONS, C. J. 1. In the case of Railroad Co. v. Luckie, 87 Ga. 6, 13 S. E. 105, this court, construing sections 2972 and 3034 of the Code, held, in substance, that the plaintiff in an action against a railroad company for personal injuries cannot recover, even though the company may have been negligent, if, after the negligence of the defendant began or was existing, the person injured could, by ordinary care, have avoided the consequences to himself of that negligence; also that, if the person injured could not, by the exercise of ordinary care, have avoided the Injury, and the injury resulted from the defendant's negligence, he can recover, although to some extent negligent himself, but the amount of the recovery should be diminished in proportion to the amount of fault attributable to him; and that this latter rule is not a qualification of the former. The first rule prevents his recovery at all if, by ordinary care, he could have avoided the injury; the second allows him to recover, although negligent himself, If he could not by the exercise of ordinary care, have avoided it. Taking into consideration the entire charge of the trial judge upon the law of contributory negligence, it was substantially in accord with the law as above stated, and covered substantially the defendant's requests to charge on this subject

2. It appears from the record that the railroad company's track extended longitudinally through Bay street, one of the principal thoroughfares of the city of Brunswick, and that the trains of the company ran from one end of the street to the other. The locomotive and...