Savannah, T. & I. of H. Ry. v. Grogan

• Citation: 43 S.E. 701,117 Ga. 461
• Parties: SAVANNAH, T. & I. OF H. RY. v. GROGAN.
• Decision Date: 18 March 1903
• Court: Supreme Court of Georgia

43 S.E. 701

117 Ga. 461

SAVANNAH, T. & I. OF H. RY. v. GROGAN.

Supreme Court of Georgia

March 18, 1903

Syllabus by the Court.

1. The verdict was sustained by the evidence, and was not excessive. Construed in connection with the whole charge, the instructions complained of were not erroneous.

Error from City Court of Savannah; T. M. Norwood, Judge.

Action by K. T. Grogan against the Savannah, Thunderbolt & Isle of Hope Railway. Judgment for plaintiff. Defendant brings error. Affirmed.

Osborne & Lawrence, for plaintiff in error.

Twiggs & Oliver, for defendant in error.

LAMAR J.

A new trial is not required because the court charged as follows "I repeat what I said about contributory negligence. If there should be contributory negligence upon the part of the plaintiff, she could yet recover, provided her negligence did not amount to a want of ordinary care; but her damages would have to be diminished in proportion to her contribution." This was not a case where the question of avoiding the injury by ordinary care was involved (Civ. Code § 3830); and the rule was stated too strongly against the plaintiff, who might have been entitled to recover even though her contributory negligence did amount to a want of ordinary care.

The charge of the court must be construed in the light of the subject-matter about which he is speaking (Brown v Matthews, 79 Ga. 7, 4 S.E. 13); and where, in instructing the jury, he charged that the plaintiff cannot allege one set of facts, and recover by proof of another, as "the plaintiff is presumed to know how he was injured better than anybody else, and is presumed to set out the facts exactly as they occurred, and upon them the law requires him to stand or fall." This was stating a rule of pleading and of presumption against the plaintiff. It was not the expression of an opinion that, as "a fact, the plaintiff knew more about the case than any one else"; nor did it "give to him a higher degree of credit," nor charge that "there was a presumption that her statements in the petition were true."

Where in a suit for personal injuries, damages are claimed for incapacity to labor and for suffering up to the time of the filing of the suit, but, without objection, evidence is admitted as to the pain, suffering, and incapacity to labor up to the time of the trial, and the judge charges on such theory, a new trial will not be granted. If objection had been made at the time,...