Macon Ry. & Light Co v. Vining

• Decision Date: 04 August 1905
• Citation: 123 Ga. 770,51 S.E. 719
• Parties: MACON RY. & LIGHT CO. v. VINING.
• Court: Georgia Supreme Court

123 Ga. 770

51 S.E. 719

MACON RY. & LIGHT CO.

v.VINING.

Supreme Court of Georgia.

Aug. 4, 1905.

1. Carriers — Street Railroads — Instructions.

A charge that it is the duty of a street car company to select a reasonably safe place for landing passengers, wherever it may stop a car for that purpose, states a sound legal proposition, and is not open to the criticism that it impliedly instructs the jury that a failure to perform such duty would be negligence per se.

[Ed. Note.—For cases in point, see vol. 9, Cent Dig. Carriers, §§ 1151, 1224, 1231.]

2. Same—Negligence.

On the trial of an action against a railway company for personal injuries, it is error for the trial judge to instruct the jury that a given state of facts would be sufficient to establish negligence on the part of the defendant; these facts not being such as would in law, per se, constitute negligence. The fact that the Supreme Court, in passing upon demurrers to the petition in the same case, when formerly under review, stated that certain acts or their omission would constitute negligence and render the defendant liable, does not make it proper for the trial judge to make such statement in charging the jury.

3. Same.

One of the charges excepted to was somewhat argumentative, and presented with too much stress plaintiff's contention of fact.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, § 561.]

(Syllabus by the Court.)

Error from City Court of Macon; Robert Hodges, Judge.

Action by H. J. Vining against the Macon Railway & Light Company. Judgment for plaintiff, and defendant brings error. Reversed.

Dessau, Harris & Harris and Roland E. Ellis, for plaintiff in error.

Marion W. Harris and T. J. Cochran, for defendant in error.

FISH, P. J. Mrs. Vining sued the Macon Railway & Light Company for damages for personal injuries alleged to have been sustained by her while a passenger of the defendant company and by reason of its negligence. A verdict was found for the plaintiff, and the defendant excepts to the refusal of a new trial. The allegations of the plaintiff's petition are fully set forth in the report of the case when it was formerly before this court 120 Ga. 511, 48 S. E. 232.

1. The court instructed the jury that it was the duty of a street car company to select a reasonably safe place for landing passengers, wherever it may stop a car for that purpose. This charge was excepted to, because it placed a duty upon the company which is not imposed by any statute or ordinance, and because it in effect instructed the jury that a failure to perform such duty would be negligence per se. The exceptions were not well taken. The charge was in the language of the opinion rendered in the case in 120 Ga. 511, 48 S. E. 232, and merely stated a correct legal proposition applicable to the case. It left the question of fact, as to whether the landing was reasonably safe or not, entirely with the jury. Western & Atlantic R. Co. v. Burnham, 123 Ga. 28, 50 S. E. 984; Atlanta & West Point R. Co. v. Hudson, 123 Ga. 108, 51 S. E. 29.

2. Other instructions excepted to were: "If, however, a passenger selects a place which is reasonably safe, and the car has stopped, and on account of the darkness the passenger cannot determine whether the car has stopped at the place designated, and the passenger exercises ordinary care and diligence, and the conductor in charge of the car permits the passenger to attempt to alight without informing him that the place selected has not been reached, and also without informing him as to any danger that might exist incident to alighting at the place at which the car had actually stopped, then the company would be liable, provided the passenger is injured in alighting as a consequence of a danger of which he is not aware, and which, on account of the darkness, was not apparent to...