Hill v. Chattanooga Ry. & Light Co.
| Decision Date | 31 October 1917 |
| Docket Number | 8806. |
| Citation | 93 S.E. 1027,21 Ga.App. 104 |
| Parties | HILL v. CHATTANOOGA RY. & LIGHT CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court charged as follows: "Now, if the defendant by the failure to exercise this degree of care [extraordinary care] injured the plaintiff, and he was a passenger, he could recover, provided he could not by the exercise of ordinary care have avoided the injury, in which event he could not recover, although the defendant may have been negligent, and provided that if the plaintiff was negligent, his negligence did not materially contribute to the injury."
(a) Although the duty of the plaintiff, under the law, to exercise ordinary care to avoid the consequences of the defendant's negligence, does not arise until such negligence is apparent, or in the exercise of ordinary care would be apparent, the failure of the court so to qualify the charge quoted above is not, in this case, harmful error. By the plaintiff's own testimony the negligence of defendant's conductor in ringing the car forward while plaintiff was boarding it was known to the plaintiff at the time, and it was for the jury to say whether he exercised ordinary care to prevent injury to himself after such negligent act of the defendant's agent.
(b) The charge was not error in that it instructed the jury that contributory negligence on the part of plaintiff would bar his right of recovery. The injury occurred in Tennessee, and no law of that state having been pleaded and proved, the common law is presumed to be of force in that state; and under the common law, contributory negligence is a bar to the plaintiff's recovery. Southern Railway Co. v Cunningham, 123 Ga. 90, 50 S.E. 979(1).
(c) The charge was not error for any of the other reasons assigned.
When a tort occurs in another state, and suit is brought on account of it in the courts of this state, the lex loci delicti governs as to all substantive matters; the lex fori as to all matters affecting only the remedy, such as rules of evidence methods of shifting the burden of proof, and the presumptions arising from given states of facts. Southern Ry. Co. v Robertson, 7 Ga.App. 154, 66 S.E. 535(2). The alleged tort in the instant case having been committed in Tennessee, and the suit brought thereon in this state, the court did not err in charging the jury that, upon proof of injury by the running of cars of the defendant company, the presumption arose that the allegations of negligence in the plaintiff's petition were well founded. The expression last quoted charges substantially that the presumption is that the defendant company was negligent in all the allegations of negligence set out in the plaintiff's declaration.
The plaintiff's case, both in his petition and by his proof, proceeded on the theory that, while boarding one of defendant's cars at its customary stopping place, he was injured by the negligent and sudden starting of the car. The defendant's contention was that the plaintiff was injured by slipping and falling when running to board the car, while it was in motion, between two of its customary stopping places. The court charged: "If the plaintiff was not a passenger according to the rules which I have laid down, then the company would be liable in this case only for gross negligence and in the event it injured the plaintiff willfully or recklessly." This charge was not authorized, under the pleadings in the case, inasmuch as the plaintiff could not recover unless injured as alleged in the petition. However, since this charge allowed the plaintiff a right of recovery to which, under his petition, he was not entitled, he will not be heard to complain.
The charge complained of in ground 6 of the motion for a new trial, in which the jury were instructed as to defendant's liability, should they find the plaintiff to have been injured while not a passenger, was, for the reason above stated, more favorable to the plaintiff than he was entitled to.
The court did not err in charging that, if the alleged injury was an accident, the plaintiff could not recover. This charge was authorized by the evidence in the case.
The charge of the court that the burden was upon the plaintiff to establish his contentions by a preponderance of the evidence was not erroneous for the alleged reason that "it excludes from the jury a presumption of negligence that the law raises upon the proof of injury." The court elsewhere charged upon the presumption of negligence.
The charge of the court complained of in ground 9 of the motion for a new trial, to the effect that, "if the evidence preponderates but slightly in his favor, that would be sufficient, but it must preponderate in favor of the plaintiff to authorize him to recover," was not such error as would authorize the grant of a new trial. It would be better for the court, in charging the jury on the subject of preponderance of evidence, to adhere to the rule as stated in section 5731 of the Civil Code of 1910, but the rule as given by the court in the instant case, while it was not in the language of the Code, and for that reason might be considered inaccurate, was not such harmful error as would authorize the grant of a new trial.
The court did not err in overruling the ground of the motion for new trial complaining that W. L. Bryant, foreman of the jury trying the case, was an incompetent juror because he had two sons-in-law working for the defendant company at the time of the trial, which fact was unknown to the plaintiff or his attorneys. Relationship to an employé of a corporation does not in this state render a juror incompetent, as a matter of law, to serve on the trial of a case in which the corporation is a party.
The case was fairly tried, the evidence amply supported a verdict in favor of the defendant, and the judgment of the court in refusing a new trial will not be disturbed.
Error from Superior Court, Catoosa County; M. C. Tarver, Judge.
Suit...
To continue reading
Request your trial