Columbus R. Co v. Peddy

• Decision Date: 13 July 1904
• Citation: 48 S.E. 149,120 Ga. 589
• Parties: COLUMBUS R. CO. v. PEDDY.
• Court: Georgia Supreme Court

48 S.E. 149

120 Ga. 589

COLUMBUS R. CO.

v.PEDDY.

Supreme Court of Georgia.

July 13, 1904.

STREET RAILROADS—PERSONAL INJURIES —INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE— INVADING THE PROVINCE OF THE JURY.

1. The preamble of the ordinance and the ordinance itself clearly show that it was adopted for the purpose of regulating the speed of cars propelled by steam, and does not apply to cars propelled by electricity. It was therefore error to admit it in evidence as applying to the speed of cars of the latter class.

2. Where a railroad company is sued for personal injuries, declarations made by an employs after the time of the injury, and not as a part of the res gestæ, are inadmissible for or against the company, but such declarations may be proved by another witness to contradict or impeach the testimony of the employs on the trial of the case. The impeaching evidence cannot be used to establish the statements in the declarations of the employs, but is admissible for the sole purpose of impeachment by proof of contradictory statements.

3. This being a very doubtful case for recovery on the part of the plaintiff, it was error to refuse the following request to charge, duly presented in writing: "The precise thing which every person is bound to do before stepping upon or going on a railroad track is that which every prudent man would do under like circumstances. If prudent men would look and listen, so must every one else, or take the consequences, so far as the consequences misht be avoided by that means." Metropolitan St. R. Co. v. Johnson, 10 S. E. 49, 90 Ga. 501 (5).

4. A charge that: "Although the railroad company may have been negligent in running its cars at a greater rate of speed than the law permits it to do, yet, if the plaintiff could have avoided the accident by the use of ordinary care and prudence upon her part, then she would not be entitled to recover. But, if the defendant was negligent and the plaintiff was negligent, then the doctrine of contributory negligence would come in"—is erroneous, in that it states in immediate connection with each other, without proper explanation, two distinct rules of law: thus qualifying the former by the latter, which is not the purpose of the statute. Americus P. & L. R. Co. v. Luckie, 13 S. E. 105, 87 Ga. 6.

5. It was error to charge the jury that the failure of the plaintiff to stop, look, and listen before driving upon the track of the defendant "would not defeat her right to recover entirely." Whether, under...