Hines v. Evitt
| Decision Date | 13 August 1920 |
| Docket Number | 11151. |
| Citation | 103 S.E. 865,25 Ga.App. 606 |
| Parties | HINES, DIRECTOR GENERAL OF RAILROADS, v. EVITT. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
This was not a suit to recover damages based solely upon the theory of a willful and wanton act perpetrated by the servants of the defendant, and only upon the proof of which a recovery would be justified; consequently the rulings made in Savannah Electric Co. v. McElvey, 126 Ga. 491, 55 S.E. 192, and Southern Railway Co. v. Wiley, 9 Ga.App. 249, 71 S.E. 11, are not controlling in the defendant's favor.
The second and third grounds of the amendment to the motion for a new trial are without merit, since the excerpts from the charge there complained of are not erroneous within themselves, and must be taken in connection with other portions of the charge, where it was plainly stated that the plaintiff could not recover if, by the exercise of ordinary care on his own part, the injury could have been avoided. Atlanta & West Point R. Co. v. Miller, 23 Ga.App 347, 98 S.E. 248(3).
Where suit is brought in this state to recover damages for personal injuries sustained in the state of Tennessee, the rights of the parties as to the merits of the case, as distinguished from the procedure, are to be determined by the law of Tennessee; and where no statute of that state is pleaded or shown it will be presumed that the common law is of force there. Lay v. N.C. & St. L. Ry. Co., 131 Ga. 345, 62 S.E. 189.
Under the common law, the rule of comparative negligence did not obtain, and any negligence on the part of the plaintiff which, taken in connection with the negligence of the defendant, contributed to the proximate cause of the injury would bar a recovery. Under that rule the degrees of the plaintiff's negligence were not considered, but "slight negligence" was taken to mean "a slight want of ordinary care." 7 A. & E. Enc. Law (2d Ed.) 373(2), 375(4), 377(5); Macon & Western R. Co. v Davis, 13 Ga. 68(10). The trial judge, under the rule of the common law, properly omitted to give in charge the law of comparative negligence, and his charge on contributory negligence was in conformity with the rule above stated, and in the absence of any request was sufficiently full.
Error from Superior Court, Whitfield County; M. C. Tarver, Judge.
Action by W. R. Evitt against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant brings error. Affirmed.
In an action for injuries caused by the act of trainmen in shutting car door while plaintiff, an intending passenger, was on the car steps, whereby he was jolted to the ground, an instruction that there was a presumption of defendant's negligence unless defendant showed extraordinary care, and that trainmen's act was a negligent one, was not erroneous when considered with instruction on contributory negligence.
The petition of W. R. Evitt alleged that defendant has damaged petitioner in the sum of $3,000 by reason of the wrongs and injuries hereinafter set out; that on the 30th day of September, 1918, petitioner purchased a ticket at Cleveland Tenn., to Dalton, Ga., and intended to take passage on the train passing Cleveland, Tenn., about 5 o'clock a. m., on the said 30th day of September, 1918; that after purchasing said ticket he went to the train and in the exercise of all ordinary care and diligence got upon the steps of the passenger coach, and as he did so the employé of the said defendant, either the conductor or flagman in uniform, shut the door of the car and prevented petitioner from getting on said train, and petitioner with one hand knocked on the door of said coach several times, but said servants negligently failed and refused to open the door and carried petitioner about 20 feet and until the engine gave a sudden jerk and threw petitioner violently to the ground and injured petitione...
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