Cent. Of Ga. Ry. Co v. Mc-kinney

• Decision Date: 13 August 1903
• Court: Georgia Supreme Court
• Parties: CENTRAL OF GEORGIA RY. CO. v. Mc-KINNEY.

45 S.E. 430

118 Ga. 535

CENTRAL OF GEORGIA RY. CO.

v.Mc-KINNEY.

Supreme Court of Georgia.

Aug. 13, 1903.

NEW TRIAL—INSTRUCTIONS—CARRIERS—INJURY TO PASSENGER.

1. Where the judge states fully and accurately the law applicable to the issues involved, the mere failure to call the attention of the jury in specific terms to the contentions of the parties as shown by the pleadings, and to explain these contentions to them, will not, unless it is plain that the omission resulted in injury to the losing party, require the granting of a new trial.

2. The judge cannot tell the jury that particular acts constitute negligence or would preclude a recovery, unless the acts are made by law to constitute negligence per se.

v 2. See Negligence, vol. 37, Cent. Dig. § 358.

3. The evidence authorized the verdict, and there was no error requiring the granting of a new trial.

(Syllabus by the Court.)

Error from Superior Court, Clayton County; J. S. Candler, Judge.

Action by L. T. D. McKinney against the Central of Georgia Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

W. L. Watterson, Robt. L. Berner, and Hall & Cleveland, for plaintiff in error.

Arnold & Arnold, for defendant in error.

COBB, J. The plaintiff recovered a verdict against the railway company for injuries alleged to have been received as a result of the negligence of the defendant in suddenly and improperly starting the train while the plaintiff was in the act of alighting therefrom at a station to which he, as a passenger, had paid the defendant to carry him. The defendant's motion for a new trial was overruled, and it excepted. This is the second appearance of this case in this court. See Central of Georgia Ry. Co. v. McKenney, 116 Ga. 13, 42 S. E. 229.

1. Complaint is made that the court erred in charging the jury as follows: "The specific acts of negligence alleged by plaintiff are set out in his declaration, and in an amendment filed to it. You will have that declaration out with you in your jury room, with the amendment, and, by a careful reading of it, you will see the various acts of negligence which are alleged by the plaintiff in this case." The assignment of error upon this charge is that it was the duty of the court to state the contentions of the parties and explain them to the jury, and that it was error to instruct them simply that they might' ascertain these contentions from an inspection of the pleadings. In City Railway v. Findley, 76 Ga. 311 (3), it was held: "It is the right and duty of the presiding judge to state to the jury the several contentions between the parties, the only restriction being that he shall state them fairly to each side." In that case complaint was made because the court stated to the jury the contentions of the parties, and the ruling made was, in effect, simply that it was proper for the judge to do this, being careful to state the contentions of both parties fairly. It certainly cannot be held that in every case the mere fail-| ure of the judge to state the contentions of j the parties in his own language is such an j error as requires the granting of a new trial. If a case should arise where the omission plainly operated to the prejudice of the losing party, a new trial might be required, but the present record presents no such case. The case of Sackett v. Stone, 115 Ga. 466, 41 S. E. 564, was a case of this character. The really important thing is for the judge to give the jury clearly and fairly the law applicable to the issues involved, and, if he does this, his failure to formally state the contentions as shown by the pleadings will not, as a general rule, be cause for a new trial. See, in this connection, Atlanta Consolidated Railway Co. v. Bagwell, 107 Ga. 157, 33 S. E. 191 (1); Maddox v. Morris, 110 Ga. 309, 35 S. E. 170 (1). The charge of the trial judge in this case fully, fairly, and lucidly stated the law applicable to the issues involved. It is not to be presumed that the jury were unable to understand the issues involved in the case as set forth in the pleadings, and it cannot be said that the judge's omission to state more definitely the contentions of the parties resulted in any injury to the defendant.

2. Complaint is also made that the judge failed to give a charge requested by the defendant to the effect that, "if the plaintiff voluntarily jumped from a rapidly moving train, he cannot recover." It may be doubted whether the request, as worded, embodied a sound proposition of law. It is not always negligence which will bar a recovery for a person to board or alight from a moving train. The question in each case is for the jury, and it is for them to say whether, under all the circumstances, taking in view the speed of the train and all the surrounding facts, the person was guilty of such a reckless act as would prevent him from recovering if the defendant was also negligent. See Suber v. Railway Co., 96 Ga. 42, 23 S. E. 387; ...