Linder v. Brown
| Decision Date | 10 January 1912 |
| Citation | 73 S.E. 734,137 Ga. 352 |
| Parties | LINDER v. BROWN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The petition set out a cause of action.
Whether or not, pending the trial of an action for damages to the plaintiff, the presiding judge can properly send the jury to inspect the place where the injury occurred, on motion of counsel for one party, and without the consent of the other party, yet where counsel for the latter is present when the motion is made, and interposes no objection, he will be considered as waiving any right to object which he may have and mistrial will not be granted upon motion therefor made after the jury have been sent to the place and allowed to inspect it. On the subject of allowing the jury to inspect the premises see Broyles v. Prisock, 97 Ga. 643 (3) 25 S.E. 389; Johnson v. Winship Machine Co., 108 Ga 554 (2), 33 S.E. 1013; County of Bibb v. Reese, 115 Ga. 346 (3), 41 S.E. 636; Central of Georgia Ry. Co. v Dukes, 134 Ga. 588 (3), 68 S.E. 321.
Under the pleadings and evidence, the duty of a railroad company to erect blow posts 400 yards from a public crossing, and the declaration that a failure to do so is a misdemeanor, as stated in Civil Code 1910, § 2676, was not relevant. But the facts authorized a charge as to the duty of engineers to signal the approach of their trains to public road or street crossings in the limits of cities, towns, and villages contained in Civil Code 1910, § 2677 (Civ. Code 1895, § 2224).
In a suit by a minor nearly 10 years of age for a personal injury resulting from the operation of a railroad train, after giving in charge section 2781 of the Civil Code of 1910 (), and section 4426 (), it was inaccurate to add: "I charge you that this law applies to grown-up people." A railroad company is not liable to either a grown person or a minor for damages to him caused by his own negligence, or where he could have avoided the consequences of the defendant's negligence by the use of due care.
(a) The standard of due care on the part of an adult and a child of tender years is different, and this is what the presiding judge doubtless meant; and if the instructions as to diligence and negligence on the part of the plaintiff (a boy not quite 10 years of age) had been correctly given, they might have been construed in connection with this charge, and have rendered a reversal because of it unnecessary.
"Due care" in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation. Due care according to age and capacity is all the law exacts of a child of tender years. Neither the average child of its own age, nor the prudent man, is a standard by which to measure its diligence with legal exactness. Civil Code 1910, § 3474; W. & A. R. Co. v. Young, 81 Ga. 397, 7 S.E. 912, 12 Am.St.Rep. 320; Id., 83 Ga. 512, 10 S.E. 197.
(a) Charges which fixed the standard of care due by a child nine years of age as "what could be expected by a party of [the] age this plaintiff is proven to have been," and which stated that if both parties were at fault, but the jury could find "that the plaintiff, considering his age, could not have avoided the accident by the exercise of ordinary care," then he would not be prevented from recovering, did not correctly state the rule as to due diligence on the part of the plaintiff, there being an allegation in his petition and some evidence tending to throw light on his capacity.
While...
To continue reading
Request your trial
-
Sarman v. Seabd. Air Line Ry. Co
...If she failed to do so, and such failure was the proximate cause of her death, the mother was not entitled to recover. Linder v. Brown, 137 Ga. 352 (4), 73 S. E. 734; Elk Cotton Mills v. Grant, 140 Ga. 727 (4), 79 S. E. 836, 48 E. R. A. (N. S.) 656; Civil Code 1910, § 3474. Whether she exer......
-
Sarman v. Seaboard Air Line Ry. Co.
...If she failed to do so, and such failure was the proximate cause of her death, the mother was not entitled to recover. Linder v. Brown, 137 Ga. 352 (4), 73 S.E. 734; Elk Cotton Mills v. Grant, 140 Ga. 727 (4), 79 836, 48 L.R.A. (N. S.) 656; Civil Code 1910,§ 3474. Whether she exercised the ......
-
Jackson v. Sanders
... ... minor, but they are the same in substance. Lasseter v ... Simpson, 78 Ga. 61(2), 3 S.E. 243; Linder v ... Brown, 137 Ga. 352(8), 73 S.E. 734; Dent v ... Merriam, 113 Ga. 83(2), 38 S.E. 334. The Code, § 3-115 ... provides: 'A suit commenced and ... ...
-
Jackson v. Sanders, 15104.
...to sue as next friend for the minor, but they are the same in substance. Lasseter v. Simpson, 78 Ga. 61(2), 3 S.E. 243; Linder v. Brown, 137 Ga. 352(8), 73 S.E. 734; Dent v. Merriam, 113 Ga. 83(2), 38 S.E, 334. The Code, § 3-115 provides: "A suit commenced and prosecuted by an infant alone ......