Georgia & F. Ry. v. Newton

• Court: Supreme Court of Georgia
• Citation: 79 S.E. 142,140 Ga. 463
• Parties: GEORGIA & F. RY. v. NEWTON.
• Decision Date: 12 August 1913

79 S.E. 142

140 Ga. 463

GEORGIA & F. RY. v. NEWTON.

Supreme Court of Georgia

August 12 1913

Syllabus by the Court.

Where on the trial of a suit against a railroad company, to recover damages for injuries alleged to have been tortiously committed by the company on the person and property of the plaintiff while crossing the railroad tracks of the former at a public street crossing, there was evidence tending to show that both the plaintiff and the defendant were negligent at the time of the injury, and where it further appears that the court in its general charge failed to instruct the jury relatively to the plaintiff's right to recover where his own negligence equals or exceeds that of the defendant, it was reversible error to refuse a written request to charge the jury as follows: "If, however, you believe that the railroad employés were negligent to some extent, and you also believe that the plaintiff was negligent to an equal or greater extent, the plaintiff cannot recover in this case and your verdict should be for the defendant."

It is not error to refuse a request to give to the jury a charge which does not accurately state a correct principle of law.

Grounds as to the unconstitutionality of an act of the Legislature which are the basis of exceptions, must be urged upon the trial, and the court must pass upon them, before error can be assigned and the questions considered by the Supreme Court.

An assignment of error upon the admission of testimony, which does not state what objection was made thereto when it was offered, nor set out literally or in substance the evidence objected to, will not be considered by the Supreme Court.

The petition was sufficient to withstand the demurrer filed.

Error from Superior Court, Jenkins County; B. T. Rawlings, Judge.

Action by B. L. Newton against the Georgia & Florida Railway. Judgment for plaintiff, and defendant brings error. Reversed.

Dixon & Dixon, of Millen, F. H. Saffold, of Swainsboro, and W. H Barrett, of Augusta, for plaintiff in error.

E. K. Overstreet, of Sylvania, and A. S. Anderson, of Millen, for defendant in error.

HILL J.

The plaintiff in the court below brought suit against the defendant for damages resulting from injuries alleged to have been sustained by being struck by one of defendant's engines and cars while crossing the railroad tracks of the defendant at a public street crossing in the city of Millen. The petition alleged, among other things, substantially as follows: At and before crossing the railroad tracks of the defendant the plaintiff looked in the direction from which the train of defendant was coming, and could see no light or cars, nor did he hear the bell or whistle. He was riding on the rear of a two-horse wagon drawn by two mules and driven by a negro man. The train which passes the crossing at which the injury occurred was 20 minutes late on the day of the injury, and the plaintiff thought it had gone; but he looked in both directions before going on the track. It was about dark, and he could not see an object at any distance. The train was about a car length from him when he first saw it, and was running at a high rate of speed, which he estimated to be about 25 or 30 miles an hour, and in excess of the rate prescribed by the ordinance of the city of Millen, and it was impossible for him to have avoided being struck by the engine. The mules became frightened, and turned quickly up the track in the direction the train was going. The engine struck the wheels of the wagon and one of the mules. The rear of the wagon in which he was sitting was pulled towards the train, and plaintiff attempted to leap from it, but was jerked under the car behind the engine, which ran over his foot, necessitating its amputation.

The defendant filed an answer, denying the allegations of negligence on its part, and averring that the alleged injury to the plaintiff was caused by his own negligence in attempting to cross the railroad track in front of a moving train, which he saw or heard, or by the exercise of ordinary care and diligence could have heard or seen, before attempting to cross. A demurrer to the petition was overruled, and to this ruling the defendant filed exceptions pendente lite. On the trial there was evidence tending to support the respective contentions of the parties. The jury found a verdict for the plaintiff, and, the defendant's motion for a new trial having been overruled, it excepted.

1. Error is assigned because the court refused a written request to give in charge to the jury the following: "If however, you believe that the railroad employés were negligent to some extent, and you also believe that the plaintiff was negligent to an equal or greater extent, the plaintiff cannot recover in this case, and your verdict should be for the defendant." The court erred in not giving this instruction. There was evidence tending to show that the defendant was negligent in having no headlight, in not ringing the bell, and in running at a high rate of speed, etc. There was also evidence tending to show that the plaintiff, or his servant, who was driving, was guilty of contributory negligence at the time of the injury. There was nothing in the general charge of the court to cover the...