Savannah v. Beasley

• Decision Date: 16 July 1894
• Citation: 21 S.E. 285,94 Ga. 142
• Court: Georgia Supreme Court
• Parties: SAVANNAH, T. & I. OF H. RY. v. BEASLEY.

21 S.E. 285

94 Ga. 142

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

v.BEASLEY.

Supreme Court of Georgia.

July 16, 1894.

Instructions — Clerical Error — Modification on Oral Request—Street Railroads—

Duties at Crossings. 1. Where the court read to the jury a request to charge in the exact language in which it was written, and the counsel who had presented the request stated "that, if he had so requested in writing, it was a clerical error, and proceeded to state the alleged error in the charge, " and "the court not comprehending or being able to understand the explanation, requested counsel, if he desired his written request modified, to reduce the modification to writing for the purpose of understanding it, " which was not done, the failure of the court to comply with the oral request to modify the written charge was not error.

2. In charging the jury upon negligence, the court should not enumerate acts or omissions which are wholly outside of any degree of diligence which the law requires. An electric railway company is under no duty to stop its cars before reaching the crossings of public highways for the purpose of looking and listening by the motormen, or to enable them to look and listen, when there is no apparent reason for so doing. Under the facts of the present case, however, the erroneous charge on this subject, giving the jury credit for ordinary intelligence, could not have prejudiced the company.

3. The evidence warranted the verdict, and there was no error in denying a new trial.

(Syllabus by the Court.)

Error from city court of Savannah; A. H. MacDonell, Judge.

Action by J. Beasley against the Savannah, Thunderbolt & Isle of Hope Railway for personal injuries. Plaintiff had judgment, and defendant brings error. Affirmed.

Saussy & Saussy, for plaintiff in error.

McAlpin & La Roche, for defendant in error.

SIMMONS, J. 1. Counsel for the defendant requested the court to charge as follows: "If both the plaintiff and defendant are at fault, damages are to be diminished in proportion to the fault attributable to the plaintiff." When the judge reached the subject of contributory negligence in bis charge, he read this request to the jury as a part of his charge. Counsel for the defendant thereupon interrupted the judge, and stated that, if the request was written as read by the court, it was a clerical error, and that he desired the court to state the proviso in the law that no recovery could be had provided the plaintiff, in the exercise of ordinary care, could not have avoided the consequences of defendant's negligence. The judge, in his certificate to the motion for a new trial, states that, not comprehending or being able to understand the explanation, he requested counsel, if he (counsel) desired his written request modified, to reduce the modification to writing, so that it could be understood. Some volume of Georgia Reports was referred to, but no decision was read. The written modification of the request was never tendered, and the jury were permitted to retire. The failure of the judge to comply with the oral request to modify the written charge was not error. When the court requested counsel to reduce the modification to...