Fairburn & Atlanta Ry. & Electric Co v. Latham

• Decision Date: 14 April 1921
• Docket Number: (No. 11800.)
• Citation: 26 Ga.App. 698,107 S.E. 88
• Court: Georgia Court of Appeals
• Parties: FAIRBURN & ATLANTA RY. & ELECTRIC CO. v. LATHAM.

26 Ga.App. 698

107 S.E. 88

FAIRBURN & ATLANTA RY. & ELECTRIC CO.

v.LATHAM.

(No. 11800.)

Court of Appeals of Georgia,

Division No. 2.

April 14, 1921.

(Syllabus by Editorial Staff.)

Error from Superior Court, Campbell County; John B. Hutcheson, Judge.

Action by Maud Latham against the Fairburn & Atlanta Railway & Electric Company. Judgment for plaintiff granting a new trial, and defendant brings error. Affirmed.

J. F. Golightly, of Union City, and J. H. Longino, of Fairburn, for plaintiff in error.

Edgar Latham, T. C. Waters, and Branch & Howard, all of Atlanta, for defendant in error.

JENKINS, P. J. [1-4] 1. Where a railway or street railway company is sued for damages on account of a homicide shown to havebeen caused by the running of its cars, the defendant will be presumed to have been negligent as charged in the petition, and liable in damages; but this presumption is rebuttable, and there can be no recovery when it is made to appear that the company exercised all ordinary and reasonable care in the operation of its train or car, or when the homicide was brought about with the consent or solely on account of the negligence of the deceased, or when, although both parties were at fault, the negligence of the deceased was equal to or exceeded that of the company, or when, after the greater negligence of the company bad or should have become known to the deceased, he nevertheless could have avoided the consequences thereof by the exercise of ordinary care on his own part If both parties were at fault, but the fault of deceased was in some degree less than that of the defendant, and he could not have avoided the consequences of the defendant's negligence by the exercise of ordinary care on his own part, then the rule of comparative negligence in the apportionment of damages will be applied. The rules of law which bar a recovery in a case where the negligence of the deceased is equal to or exceeds that of the defendant, or in a case where the deceased fails to exercise the ordinary care required of him to avoid the consequences of the defendant's negligence, do not have application, however, when the contributory conduct of the defendant does not consist of mere negligence, but is willful or so grossly reckless as to amount to wantonness.

2. Applying the foregoing general principles to the facts of the instant case, there could be no recovery if it were made to appear that, in consequence of the deceased having voluntarily become intoxicated, he thereafter proceeded to place himself on, the defendant's track, and, while lying in such a helpless condition and exposed situation, was run over and killed, unless it also be made to appear that the defendant's conduct, contributing to the homicide, was willful or amounted to wantonness. This would be true, not on the theory that under the particular facts...