Macon & I.S. Electric St. Ry. Co. v. Holmes

• Decision Date: 23 March 1898
• Citation: Macon & I.S. Electric St. Ry. Co. v. Holmes, 30 S.E. 563, 103 Ga. 655 (Ga. 1898)
• Parties: MACON & I. S. ELECTRIC ST. RY. CO. v. HOLMES.
• Court: Georgia Supreme Court

30 S.E. 563

103 Ga. 655

MACON & I. S. ELECTRIC ST. RY. CO. v. HOLMES.

Supreme Court of Georgia

March 23, 1898

Syllabus by the Court.

1. In a suit against a street-railroad company for personal injuries resulting by its car coming in contact with one who was undertaking to cross its track, the plaintiff cannot recover if, by the exercise of ordinary care, he could have avoided the consequences of defendant's negligence at any time after such negligence had become apparent, or he had reason to apprehend its existence. The following charge of the court, without qualification, was therefore error "Indeed, the plaintiff could recover, if the injury was inflicted under these circumstances, if his going upon the track had been in the exercise of ordinary care notwithstanding he may have been himself in some degree of negligence. If his going upon the track was proper, under the evidence, in that it was not contrary to the exercise of ordinary care, and he was injured thereafter, he would be entitled to recover, even though you should believe he was at some fault himself, in failing to avoid the injury."

2. After the plaintiff has become apprised of the existence of defendant's negligence of which he complains, if he could avoid its consequences by the exercise of ordinary diligence, and fails to do so, such negligence on his part will defeat a recovery. It was therefore error for the court to charge the jury as follows: "If he (the plaintiff) was advised of the defendant's negligence, the moment he was so advised, or the moment he had reason to apprehend the defendant's negligence, he was bound from that moment to exercise ordinary diligence to keep from receiving any injury by reason of the negligence of the defendant; and, to the extent he failed to exercise such diligence, he would be negligent. Such negligence would not defeat his recovery, but would lessen it in accordance with what you believe its proportion bore to the defendant's negligence."

3. It does not follow, as a matter of law, that it is the duty of a conductor of a street-railroad car to observe the track in front of the car, and that portion of a street contiguous to the track on either side. In the absence of any proof showing that he was under any obligation of this kind, it was error for the court to instruct the jury that such was his duty, and a failure in its discharge would be negligence.

4. The evidence not demanding the verdict for the plaintiff, the above errors in the charge of the court, excepted to by the defendant, require the grant of a new trial.

Error from city court of Macon; J. P. Ross, Judge.

Action by J. B. Holmes against the Macon & Indian Springs Electric Street-Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Dessau, Bartlett & Ellis, for plaintiff in error.

Guerry & Hall, for defendant in error.

LEWIS J.

This was an action for damages on account of personal injuries alleged to have been sustained by the plaintiff by reason of his being struck by a street car of the defendant while he was attempting to cross the track of its railway. Plaintiff's contention was: That as he was approaching, upon a public street in the city of Macon, the track of the street-railroad company, his view was obstructed by some wagons on the street, and near the track, which prevented him from seeing any distance in the direction from which defendant's car was coming. He was partially deaf, and did not hear the running of the car at all. Did not know of its approach until he was struck, just as he was about to leave the track. That the motorman knew of his impaired hearing, and that he was running at a reckless and dangerous rate of speed. That he did not give the alarm by ringing his bell, which plaintiff could have heard. The defendant contended, on the other hand, that it did not observe plaintiff until it was too late to prevent the accident; that the alarm was duly given of the approach of the car, which was running at a moderate rate of speed,--four miles an hour; that it exercised due diligence; and that the accident was unavoidable. It further contended that the motorman was watching out ahead, and that the conductor was engaged inside of the car, and consequently did not observe the plaintiff at all until after he was injured. The plaintiff obtained a verdict for $700, and, defendant's motion for a new trial being overruled, it excepted.

1, 2. Among the grounds of the motion for a new trial, error was alleged in the following charge of the court: "If he (the motorman) failed to do those things which ordinary care would have prompted a person in his position, and with his knowledge of the plaintiff, to do, and by reason of his failure to observe those duties the plaintiff was injured without fault on his part, the plaintiff can recover. Indeed the plaintiff could recover, if the injury was inflicted under these circumstances, if his going upon the track had been in the exercise of ordinary care, notwithstanding he may have been himself in some degree of negligence. If his going upon the track was proper, under the evidence, in that it was not contrary to the exercise of ordinary care, and he was injured thereafter, he would be entitled to recover, even though you should believe he was at some fault himself, in failing to avoid the injury." Also in charging: "Because the rule which requires one to avoid the consequences of another's negligence does not apply until he sees the danger, or has reason to apprehend it. Therefore, if the plaintiff was properly on the track, he is not chargeable with negligence, in failing to avoid the injury from the running of the cars, unless he failed to exercise due diligence to avoid the consequences of the defendant's negligence, if the defendant was guilty of any...