City Of Rome v. Sudduth
| Decision Date | 10 December 1904 |
| Citation | 121 Ga. 420,49 S.E. 300 |
| Parties | CITY OF ROME v. SUDDUTH. |
| Court | Georgia Supreme Court |
APPEAL—REMAND — AMENDMENT OF DECLARATION—TRIAL—NEGLIGENCE — QUESTION FOB JURY—INSTRUCTIONS.
1. Where a declaration has been demurred to in the trial court, and the demurrer overruled, and that judgment reversed by this court, upon the return of the remittitur to the lower court the plaintiff has the right to amend his declaration. Charleston & W. C. Ry. Co. v. Miller, 41 S. E. 252, 115 Ga. 92. It is otherwise where the lower court has sustained a demurrer, and that judgment affirmed by this court. In the latter case there is nothing in the lower court to amend. Central R. & B. Co. v. Patterson, 13 S. E. 525, 87 Ga. 646.
2. The ruling of this court when the case was here before was that there were not sufficient facts alleged to authorize the plaintiff to recover (City of Rome v. Suddeth, 42 S. E. 1032, 116 Ga. 649), but there was enough in the declaration to amend by.
3. The petition as amended was good against the general demurrers filed thereto.
4. Negligence is a question for the jury. The trial judge cannot instruct the jury what facts do or do not constitute negligence, except where declared by statute. Consequently it is error for the judge, in a suit for damages based on the negligence of the defendant, to charge that, if the defendant's failure to do its duty "was in accordance with the allegations of the plaintiff's petition, then that would be negligence, as he charges in this case " Augusta Ry. & Electric Co. v. Smith, 48 S. E. 681, 121 Ga.——.¶ 4. See Negligence, vol. 37, Cent Dig. § 279.
5. Taken in connection with the entire charge, no error appears in the portions of the charge, other than as just above pointed out, to which exception was taken.
6. It is not error to refuse a request to charge which is in part inapplicable to the case.
(Syllabus by the Court)
Error from Superior Court, Floyd County; W. M. Henry, Judge.
Action by A. F. Sudduth against the city of Rome. Judgment for plaintiff. Defendant brings error. Reversed.
Halsted Smith, for plaintiff in error.
Seaborn & Barry Wright for defendant in error.
SIMMONS, C. J. Judgment reversed. All the Justices concur.
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