Rogers v. Mckinley

• Decision Date: 17 January 1934
• Docket Number: No. 23359.,23359.
• Parties: ROGERS. v. McKINLEY et al.
• Court: Georgia Court of Appeals

48 Ga.App. 262

172 S.E. 662

ROGERS.

v.McKINLEY et al.

No. 23359.

Court of Appeals of Georgia,

Division No. 2.

Jan. 17, 1934.

Syllabus by Editorial Staff.

Error from Superior Court, Baldwin County; James B. Park, Judge.

Suit by Annell Rogers, by next friend, against A. C. McKinley and others. Judgment for defendants, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Reversed.

M. Felton Hatcher, of Macon, and McCul-lar & McCullar, of Milledgeville, for plaintiff in error.

Sibley & Allen, of Milledgeville, for defendants in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

This was an action by the plaintiff, as next friend for his minor daughter, who was between ten and eleven years of age, for damages caused by the alleged negligence of the defendants. The defendants denied liability. Upon the trial of the issues formed, the evidence was conflicting as to whether the defendants were guilty of the alleged negligence. The jury returned a verdict in favor of the defendant, and the plaintiff moved for a new trial, which was overruled, and bo this judgment she excepts.

1. The court charged the jury as follows: "I charge you that if you believe from the evidence in this case that the cause of the injury was on account of the fact that the plaintiff was guilty of contributory negligence and failed bo exercise the care which was required by the law to have been exercised by her, a child of her years of age or capacity, mental and physical, that she should have exercised in the actual circumstances of the occasion and situation, then the plaintiff could not recover in this case and the form of your verdict would be, 'We, the jury, find for the defendant.' I charge you that contributory negligence in law means negligence on the part of the plaintiff, and in a child of tender years It is required of her that she must exercise what is known in law as due care, which means that care of this particular child as her capacity, mental and physical, fits her for exercising in the actual circumstances of the occasion and situation of this particular case, and if you believe that the cause of the injury in this case was on account of the want or lack of that due care just stated to you, then the plaintiff in this case would not be entitled to recover and the form of your verdict would be, 'We, the jury, find for the defendant' I charge you that if you believe from the evidence in this case that both parties, the defendants and the plaintiff, were guilty of negligence, but the negligence of the plaintiff was equal to or exceeded the negligence of the defendants, then you should find for the defendants in this case, because the law holds that if the plaintiff's negligence exceeds the defendants' negligence, or was merely equal to the defendants' negligence, the plaintiff can not recover, and your verdict would have to be for the defendants in the case."

The plaintiff assigns error upon this charge upon the ground that the same was not a correct statement of the law, was calculated to mislead and confuse the jury, and because it does not clearly state the law in reference tocontributory negligence, in that the court failed to instruct the jury that in the event it should be determined that both parties, the defendants and the plaintiff, were guilty of negligence, the plaintiff might nevertheless recover in the event the plaintiff's negligence did not equal the negligence of the defendants, but in that event the plaintiff would be entitled to recover, but her recovery would be diminished in proportion to the amount of negligence chargeable to her.

The plaintiff sought of the defendants full damages for the injuries caused by their alleged negligence. The defendants deny that they were negligent. It is well settled that while a charge embracing an abstractly correct and pertinent principle of law, complete within itself, is not rendered erroneous by a failure to charge in connection therewith some other legal principle applicable to the case, but this rule has no application where the charge as given is. on account of its incompleteness, inherently incorrect. When a judge undertakes to charge the law upon any subject, he must charge all of it upon that subject that is material and applicable to the case. Hinson v. Hooks, 27 Ga. App. 430, 108 S. E. 822; Georgia Ry., etc., Co. v. McElroy, 36 Ga. App. 143, 145, 136 S. E. 85. It makes no difference that the plaintiff had not requested the court to charge the law of comparative negligence. "While the judge was under no duty, in the absence of any raising of the issue by the pleadings or of any request to charge to deal with the rule of comparative negligence, nevertheless when he did deal in part therewith, it became his duty to charge with accuracy the essentials of that principle." Brown v. Meikleham, 34 Ga. App. 207 (4), 209. 12S S. E. 918, 920. The court in charging on the comparative negligence doctrine stated the portion favorable to the defendants, but omitted to state the portion favorable to the plaintiff.

Under the common-law doctrine of contributory negligence, which now prevails in most jurisdictions but which has been changed by statute in this state (Civil Code of 1910, 2781, 4426), if the negligence of the plaintiff, no matter how small, contributed to the injury sustained by her, she could not recover of the defendants. This doctrine did not diminish the damages but precluded a recovery. The doctrine which prevails in this state, by reason of our statutes, is more accurately and properly designated as that of comparative negligence, rather than that of contributory negligence. Central Ry. Co. v. Larsen, 19 Ga. App. 413, 417, 91 S. E. 517. The comparative negligence rule in force in this state is that where there is negligence by both parties which is concurrent and contributes to the injury sued for, a recovery by the plaintiff is not barred, but his damages shall be diminished by an amount proportion ed to the amount of fault attributable to him,

provided that his fault is less than the defendants, and that, by the exercise of ordinary care, he could not have avoided the consequences of the defendants' negligence after it became apparent or in the exercise of ordinary care should have been discovered by the plaintiff. Ocilla v. Luke, 28 Ga. App. 234, 110 S. E. 757. If the plaintiff in this case, by the exercise of due care (and 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) could have avoided the consequences to herself caused by the negligence on the part of the defendants, where that negligence became apparent to her, or where by the exercise of that due care upon her part she could have become aware of it. if the defendants were negligent, she is not entitled to recover. However, if the plaintiff could not have avoided the injury to herself caused by the defendants" negligence by the exercise upon her part of the due care required of her, then, notwithstanding that she may have been at fault, if her negligence was less than that of the defendant, she would be entitled to recover, but the amount of the verdict in her favor should be diminished in proportion to the amount of fault attributable to her, but, even in such circumstances, if the negligence upon her part was equal to or greater than the negligence of the defendant, keeping in mind the amount of due care required of her, she would not be entitled to recover. Americus, etc., R. Co. v. Luckie, 87 Ga. 6, 13 S. E. 105; Southern Ry. Co. v. Nichols, 135 Ga. 11 (4), 68 S. E. 789; Wrightsville, etc., R. Co. v. Floyd. 17 Ga. App. 461, 87 S. E. 688; Lamb v. McAfee, 18 Ga. App. 584 (3), 90 S. E. 103: Central Ry. Co. v. Larsen, 19 Ga. App. 413, 91 S. E. 517; Howard v. Georgia Railroad, 25 Ga. App. 636 (4). 104 S. E. 26; Fairburn, etc., Co. v. Latham. 26 Ga. App. 60S, 107 S. E. 88; Georgia Ry.. etc., Co. v. Reid, 26 Ga. App. 720, 107 S. E. 100; Georgia Ry., etc., Co. v. McElroy. 36 Ga. App. 143, 136 S. E. 85; Brown v. Meikleham. 34 Ga App. 207 (3, 4), 128 S. E. 918; CivU Code (1910), §§ 3474, 4426.

Applying these principles to the charge excepted to by the plaintiff, we are of the opinion that it was confusing and misleading to the jury and did not state fully, completely, and accurately the comparative negligence doctrine prevailing in this state, but, on the contrary, charged an incorrect and incomplete statement of the law, and upon the subject of comparative negligence stated that portion of the doctrine favorable to the defendants and omitted to charge the other portion thereof favorable to the plaintiff.

2. In grounds 14 to 21, inclusive, of the motion for new trial, the...