Richmond & D.R. Co. v. Howard
| Decision Date | 21 March 1887 |
| Citation | 3 S.E. 426,79 Ga. 44 |
| Parties | RICHMOND & D. R. Co. v. HOWARD. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
To say that the burden of proving a fact is on the plaintiff implies that there is no burden on the defendant to establish the non-existence of such fact.
Failure of the injured party in the use of ordinary care, by untimely stepping upon a railroad track at a public crossing, is no complete bar to the recovery of damages, unless, by the use of ordinary care, the consequences due to the negligence of the other party could have been avoided; and whether they could or not is a question for the jury.
The court cannot point out to the jury specifically the ways of the prudent; the laws supposing these ways better known to the jury than to the judge. It is not incumbent upon the court to instruct the jury that it is the duty of one who attempts or intends to cross a railroad track to use his senses of hearing and seeing before stepping on the track. [1]1
Ordinary care is that care which every prudent man observes; and to describe it as synonymous with, or about equivalent to common prudence, is not misleading, especially when this exposition is applied alike to the conduct of both parties.
Points and principles sufficiently covered by the general charge need not be repeated.
As matter of stern legal duty, this court yields its strong doubts of the correctness of the verdict.
Error from superior court, Fulton county; MARSHALL J. CLARK, Judge.
Hopkins & Glenn, for plaintiff in error.
Gartrell & Wright, Bigby & Dorsey, and Harrison & Peoples, for defendant in error.
A widow brought an action against the railroad company for the homicide of her husband. The trial was had upon very voluminous evidence. The jury found a verdict for the plaintiff. The defendant moved for a new trial on various grounds. The motion was denied, and that is the basis of this writ of error.
1. Among the grounds of the motion for a new trial was one which complained that the judge declined to give a request in charge to the jury, which request sought to protect the defendant against the burden of proof as to the negative of certain propositions. The court, instead of giving that request, gave, in its general charge, instructions that, to recover, it was necessary for the plaintiff to prove the affirmative of these propositions; in other words, the court told the jury that the burden of proving these things was upon the plaintiff. There is nothing in this ground of the motion. To say that the burden of proving a fact is on the plaintiff implies that there is no burden on the defendant to establish the non-existence of such fact.
2. Another request to charge was denied. By doubtless an unconscious ingenuity this request omits an essential element of correctness. It submits to the jury whether a specific act would be consistent or inconsistent with ordinary diligence but it fails to refer it to the jury to determine whether the deceased could, by the exercise of ordinary diligence, have avoided the consequences of the defendant's negligence. "If you believe, from the evidence, that the dead man stepped on the track a few feet in front of the engine or tender, and that, if he had looked before stepping on, he could have seen the engine in time not to step on the track, and that in thus stepping on the track he was not in the exercise of ordinary care, then the plaintiff cannot recover, and it would be your duty to find for the defendant." This request stakes the whole case upon a step; and, while it refers to the jury the question as to whether the taking of that step was a deviation from ordinary care, it does not refer to the jury the question as to whether the observance of ordinary care would have enabled the stepper to avoid the consequences of the defendant's negligence. This step may have been chargeable to the deceased to reduce the damages, as an act of contributory negligence. But the request did not limit it in any such manner; it extends it over the whole case, and makes it the basis, or seeks to make it the basis, of defeating all recovery. Failure of the injured party in the use of ordinary care, by untimely stepping upon a railroad track at a public crossing, is no complete bar to the recovery of damages, unless, by the use of ordinary care, the consequences due to the negligence of the other party could have been avoided. Code, §§ 2972, 3034. And whether they could or could not is a question for the jury. The court was virtually asked to decide that question, and very properly declined to do it.
3. Still another request made and declined is equally, if not more, ingenuous; the ingenuity being again, as we take it for granted, perfectly unconscious. The request was this: "When one attempts or intends to cross a railroad track, it would be his duty, before stepping on the track, to use his senses of hearing and seeing; and if he fails to do it, and you believe that in such failure he was not in the exercise of ordinary care, and that ordinary care required him to look and listen, and, if he had done so, he would have avoided the injury, then your verdict should be for the defendant." It requires some study of this compact body of language to reach the infirmity which it covers over. The equivalent of it I have endeavored to present in a more diffuse and expanded form. It will be noticed that the request says, "When one attempts," etc.; making the proposition perfectly universal. Expressing that universality in its full compass, the request will run about this way: In all cases, and under all circumstances, it is the duty of any and every person, when he attempts or intends to cross a railroad track, to use his senses of hearing and seeing, before stepping upon the track. If any person in any case, or under any circumstances, fails to do it, and if you believe (now, since I have defined the duty of all) that in...
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