Collum v. Ga. Ry. & Electric Co

• Decision Date: 23 September 1913
• Citation: 79 S.E. 475,140 Ga. 573
• Court: Georgia Supreme Court
• Parties: COLLUM. v. GEORGIA RY. & ELECTRIC CO.

79 S.E. 475

(140 Ga. 573)

COLLUM.

v.GEORGIA RY. & ELECTRIC CO.

Supreme Court of Georgia.

Sept. 23, 1913.

(Syllabus by the Court.)

1. Street Railroads (§ 98^*)—Injuries to Travelers — Contributory Negligence — Instructions—Statutes.

In an action against a street railway company for personal injuries, the court instructed the jury to the effect that if they believed from the evidence that the plaintiff's own negligence was the proximate producing cause of his injuries he could not recover, and, further, that if the plaintiff was injured by his own negligence he could not recover, and that "the law imposes on the plaintiff the duty of exercising ordinary care to protect himself, and ordinary care, as applied to him, means just that care that every prudent man would have exercised under the same or similar circumstances, and a failure to exercise such care on his part would constitute negligence." These instructions were alleged to be erroneous, because they "laid down the unqualified rule that if the plaintiff was injured by his own negligence he could not recover, and required the plaintiff, in general, unqualified terms, to exercise ordinary care; whereas, as movant contends, the true rule is that even the failure to exercise ordinary care would not entirely defeat the plaintiffs right to recover, unless such failure occurred after the defendant's negligence was apparent to the plaintiff, or should have been reasonably apprehended." The exceptions to the instructions were not meritorious. Civil Code 1910, § 2781, declares that "no person shall recover damage from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence." If the plaintiff's injuries were caused by his own negligence, he cannot recover, whether his negligence was prior or subsequent to negligence of the defendant company.

[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*]

2. Negligence (J 141*) — Instructions — Contributory Negligence.

Another instruction excepted to was to the effect that if the plaintiff could by the exercise of ordinary care have avoided the consequences to himself of the defendant's negligence, if the defendant was negligent, there could be no recovery. This instruction was in effect the language of Civil Code 1910, § 4426, and was not erroneous "in not limiting the plaintiff's negligence which would be a complete bar to a recovery to that which occurred after the defendant's negligence became apparent to the plaintiff, or should have been reasonably apprehended by him."

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.*]

3. Street Railroads (§ 118*)—Injuries to Travelers — Care Required — Duty to Look and Listen.

Exception was also taken to the following instruction: "The law declares that the precise thing that every man is bound to do before stepping upon a railroad (and that applies to street railroads, as well as other railroads) is that which every prudent man would do under like circumstances; and if you believe that every prudent man would look and listen, so must every one else, or take the consequences, so far as the consequences may have been avoided by that means." This instruction was substantially in the language used in Metropolitan Street Railroad Co. v. Johnson, 90 Ga. 500 (5), 504, 16 S. E. 49, and was not subject to the criticism that it "measured the duty of the plaintiff to stop and listen by what was required of 'every prudent man, ' without specifying the degree of prudence required; whereas, all the law requires * * * is the exercise of ordinary care or prudence."

[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*]

4. Charge to Jury—Statement op Issues.

The court in the charge to the jury fully and accurately stated the contentions of the plaintiff as set out in the petition.

5. Street Railroads (§ 118*)—Injuries to Travelers — Contributory Negligence

—Avoidance.

A further instruction was to the effect that, if the plaintiff and the defendant company were both negligent, the plaintiff could recover if his negligence was not equal to or did not exceed the negligence of the defendant, and if he could not by the exercise of ordinary care have avoided the consequences to himself of the defendant's negligence, but that in such case the damages should be diminished in proportion to the amount of negligence attributable...