Georgia Ry. & Elec. Co. v. Gatlin
| Decision Date | 18 August 1914 |
| Docket Number | 506. |
| Citation | 82 S.E. 888,142 Ga. 293 |
| Parties | GEORGIA RY. & ELECTRIC CO. v. GATLIN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Under the facts of this case, a reversal will not be granted on the ground that the presiding judge charged the jury in regard to the failure of the conductor of a street car to see and obey a signal given by a passenger in order to cause the car to be stopped at a street crossing, so that the passenger might leave the car; the contention being that such ground of alleged negligence had been eliminated on demurrer.
It was erroneous to charge that the jury could not find for the plaintiff on the allegation of negligence that the door of the car was open, "if you also believe that she [the passenger injured] was not in the exercise of ordinary care in respect to the door, and that the open door was not negligence, or was not the proximate cause of the injury."
(a) The pleadings and evidence did not show that the leaving open of the door between the body of the car and the platform, about the middle of September, as was shown by the plaintiff to have been usual at that season, was a negligent act proximately causing the injury, relatively to a passenger 18 years old, who, in order to leave the car, had voluntarily partially or wholly passed through the door before being injured.
(b) It was error to charge conjunctively that the plaintiff could not recover on account of the door being open, if the jury also believe that the injured person was lacking in ordinary care in respect to the door, and that leaving the door open was not negligence, or was not the proximate cause of the injury.
The petition having alleged that, after a conductor of a street car had failed to obey a signal given by a passenger in order to cause the car to be stopped at the next crossing, the passenger went to the rear of the car in order to again notify the conductor, and that the speed of the car was suddenly and violently checked, throwing her off and injuring her, and there being evidence that, when the signal to stop was given, there was a sudden checking of the speed, causing a jerk, the front of the car plunging forward and the rear end being lifted up, there was no error in charging in regard to a jerk "forward," on the ground that the petition did not allege such negligence.
Without discussing whether the language of Mr. Justice Blandford in Cheeves v. Danielly, 80 Ga. 114, 116, 4 S.E. 902 was entirely apt as applied to the facts of the case then being discussed, its use in charging in the present case was not accurate in stating that if an act complained of, though it may in some degree contribute to an injury, is so small and of such a character as would not of itself produce the injury, "and is of itself an innocent act," and there are other and contingent circumstances which greatly preponderate in producing the injury, there can be no recovery, but that if the act complained of directly produces damage, however small the act may be, then it may be the subject of recovery.
While the judge should give in charge the substantial law of the case on trial, he is not required to comply with requests which select certain features of it and invoke argumentative instructions in regard to them.
Error from Superior Court, Fulton County; W. D. Ellis, Judge.
Action by Charles C. Gatlin against the Georgia Railway & Electric Company. Judgment for plaintiff, and defendant brings error. Reversed.
Colquitt & Conyers, of Atlanta, for plaintiff in error.
P. C McDuffie, of Atlanta, for defendant in error.
Charles C. Gatlin brought suit against the Georgia Railway & Electric Company to recover for an injury to his minor daughter, alleged to have been caused by the negligent conduct of the employés of the defendant in operating a street car on which the girl was a passenger. The plaintiff obtained a verdict for $250. The defendant moved for a new trial, which was refused, and it excepted.
1. It was contended that the court erred in submitting to the jury as a ground of negligence, the failure of the conductor to see a signal by the injured passenger and to stop the car at the next street crossing. The reason why it was urged that it was an error was that this alleged ground of negligence had been stricken from the petition on demurrer. The presiding judge seems to have considered that some parts of the petition had been stricken, and in his charge instructed the jury not to consider parts marked out with a pencil. But it is impossible for us to ascertain, from the record before us, what those parts were. From the record it appears that there was a demurrer to the petition as a whole and to certain parts of it, that the demurrer was sustained, with leave to amend, and that there was an amendment, which reiterated that the conductor failed to stop on the first...
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