Cooper v. Georgia Power Co.

• Decision Date: 14 January 1932
• Docket Number: 21432.
• Citation: 162 S.E. 302,44 Ga.App. 581
• Parties: COOPER v. GEORGIA POWER CO.
• Court: Georgia Court of Appeals

162 S.E. 302

44 Ga.App. 581

COOPER v. GEORGIA POWER CO.

No. 21432.

Court of Appeals of Georgia, Second Division

January 14, 1932

Syllabus OPINION.

Evidence held insufficient to authorize submission to jury of issue of passenger's contributory negligence, where injuries were sustained as result of sudden jolt of street car due to derailment.

That street car passenger was carrying packages in lap and attempted to hold to seat to resist sudden jolt held not negligence.

Testimony that street car passenger seemed to have slid from seat held mere conclusion.

Instruction that passenger's failure to exercise care after street railway company's negligence arose and was known would prevent recovery for injuries, held erroneous (Civ Code 1910, § 4426).

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by Mrs. J. T. Cooper against the Georgia Power Company. Judgment for defendant, and plaintiff brings error.

Reversed.

T. L Slappey and Hewlett & Dennis, all of Atlanta, for plaintiff in error.

Colquitt, Parker, Troutman & Arkwright, of Atlanta, for defendant in error.

BELL J.

1. In a suit against a street railway company to recover damages for injuries alleged to have been sustained by the plaintiff while riding as a passenger upon a street car, where it appeared from the evidence that if the injuries were sustained as alleged, they were occasioned by some jolt or motion of the car as a result of a derailment of the rear trucks, after which the car was stopped within a short distance, and that the entire transaction could have occupied the space of only a few seconds, during which the plaintiff was thrown or caused to slide from the seat, there was no issue as to whether the plaintiff's injuries were caused by her own negligence, or as to whether she could have avoided the consequences of the defendant's negligence after it was or should have been apprehended, and a charge which submitted these issues was erroneous as being without evidence to support it, and, being calculated to mislead and confuse the jury, constituted ground for a new trial to the plaintiff. Georgia, Florida & Alabama Ry. Co. v. Sasser, 4 Ga.App. 276 (6), 283, 61 S.E. 505; Atlantic Coast Line R. Co. v. Anderson, 35 Ga.App. 292 (5), 298, 133 S.E. 63; Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (2), 76 S.E. 387, Ann.Cas. 1914A, 880; Kirkland v. Brewton, 32 Ga.App. 128 (2), 122 S.E. 814.

(a) Where it appeared that the plaintiff was seated at a proper place and in a proper manner, the mere fact that she was carrying some packages in her lap, and attempted to hold to the seat or to some other object in order to resist the motion or jolt of the car at the time of the derailment, did not amount to negligence or a failure to exercise ordinary care on her part; nor would testimony of another passenger to the effect that the plaintiff "seemed to have slid" from the seat suffice to present an issue as to the plaintiff's negligence or...