Ga. Ry. & Power Co v. Gilbert

• Decision Date: 14 December 1928
• Docket Number: (No. 18724.)
• Citation: 39 Ga.App. 56,146 S.E. 33
• Court: Georgia Court of Appeals
• Parties: GEORGIA RY. & POWER CO. v. GILBERT.

39 Ga.App. 56

146 S.E. 33

GEORGIA RY. & POWER CO.

v.GILBERT.

(No. 18724.)

Court of Appeals of Georgia, Division No. 2.

Dec. 14, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Action by B. H. Gilbert against the Georgia Railway & Power Company. Judgment for plaintiff, and defendant brings error. Reversed.

Colquitt & Conyers and Sidney Smith, all of Atlanta, for plaintiff in error.

D. K. Johnston, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

BELL, J. [1] 1. "In Georgia Railway & Electric Co. v. Reeves, 123 Ga. 097, 51 S. E. 610, and S. A. L. Ry. Co. v. Bishop, 132 Ga. 71, 63 S. E. 1103, it is clearly ruled that a person injured in alighting from a moving train, or even from a stationary train, by the running of the company's locomotive, cars, or machinery, is entitled to the statutory presumption." Southern Railway Co. v. Par-ham, 10 Ga. App. 531 (5), 539, 73 S. E. 763, 767. It follows that in the present case, which was a suit to recover damages for an injury to a passenger in alighting from a street car, the court did not err in giving in charge to the jury the provisions of Civil Code, § 2780, as to the presumption against railroad companies in case of injury by the running of its trains or by any person in the employment and service of such company.

2. In such a case, a further charge that, upon proof of the injury as alleged in the petition, "then the presumption of negligence would arise against the defendant company and the burden would then be upon the defendant to rebut that presumption, by showing it was not negligent, and by making it appear, from the evidence, that its agents and servants exercised extraordinary care and diligence in connection with these specifications in which it is charged that its negligence consisted; or to show that the injury occurred not through its negligence, but was due to the fact that the plaintiff did not exercise ordinary care on her part, and that by the exercise of such care she could have avoided the consequences to herself of the defendant's negligence, if it appears the defendant was negligent, " was not erroneous upon the ground that it placed upon the defendant a greater burden than was authorized by law. The defenses which may be interposed in a case of this character are: (1) That the company's agents have exercised all ordinary and reasonable care and diligence to avoid the injury; (2) that the damage was caused by the negligence of the person injured; (3) that he consented to it; (4) or that the person injured could, by the use of ordinary care, have avoided the injury to himself, although caused by the defendant'snegligence....