Savannah v. Evans

• Decision Date: 25 April 1902
• Citation: 41 S.E. 631,115 Ga. 315
• Court: Georgia Supreme Court
• Parties: SAVANNAH, F. & W. RY. CO. v. EVANS.

41 S.E. 631

115 Ga. 315

SAVANNAH, F. & W. RY. CO.

v.EVANS.

Supreme Court of Georgia.

April 25, 1902.

RAILROADS—ACCIDENTS AT CROSSINGS—INSTRUCTIONS.

1. In the trial of an action in a court of this state for a negligent tort alleged to have been committed in another state, it is error for the court to tell the jury what facts do or do not constitute negligence, unless it appears from the evidence that there is a statute of the state in which the tort was committed, or a valid municipal ordinance, if the act complained of was done in a town or city^ which in terms or in effect declares the act referred to to be negligence.

2. In the trial of such a case a charge of the character above indicated would be objectionable, although it may have been a literal extract from a decision by the court of last resort in the state in which the cause of action originated.

3. Several assignments of error in the present case refer to matters which probably will not occur on another trial; and if any errors, other than those above referred to, were committed, they will doubtless not be repeated when the case comes on for a second trial.

(Syllabus by the Court.)

Error from city court of Savannah; T. M. Norwood, Judge.

Action by Elizabeth Evans against the Savannah, Florida & Western Railway Company. There was judgment for plaintiff, and defendant brings error. Reversed.

Chisholm & Clay, Shelby Myrick, and W. G. Charlton, for plaintiff in error.

Twiggs & Oliver, for defendant in error.

COBB, J. The plaintiff brought suit against the railway company in the city court of Savannah for damages alleged to have resulted from the homicide of her husband. The petition alleged that the homicide occurred in the state of Florida, and was occasioned by the negligence of the servants and agents of the defendant. The trial resulted in a verdict in favor of the plaintiff, and the defendant complains that the court erred in refusing to grant her a new trial.

1. Error is assigned upon the following extracts from the charge of the court:

"It has been adjudged by the supreme court of Florida to be gross negligence on the part of a railroad company to back u train without a brakeman at the rear, and across the main thoroughfare of a village, when there is no flagman at the crossing, even when the train is moving a little faster than a person walks."

"You are instructed that, while it was the duty of the plaintiff's husband, while upon, around, or crossing the railroad track of the defendant, to look out and listen for approaching trains with such care as an ordi narily prudent man would have used, yet that failure on his part to do so, if you find that there was such failure on his part, was not such contributory negligence as would bar plaintiff's right of recovery, if you further find that the defendant, after seeing the plaintiff's husband, or after it should, in the exercise of due care, have seen the plaintiff's husband, on its tracks, or so near thereto as not to have space to pass safely, failed to exercise all proper measure to avoid the casualty."

"By the law of Florida, if the defendant is at fault and the plaintiff is at fault, the plaintiff is entitled to recover, but the jury must diminish the damages in proportion to the fault attributable to the plaintiff. If it be true, as contended by the plaintiff, that the deceased, when injured, was crossing defendant's track, oblivious of the approach of a train, and a lookout stationed upon the rear of the car, in the exercise of reasonable diligence, could and would have discovered the plaintiff's perilous situation in time to avert the collision by warning, application of brakes, or otherwise, then the failure to put a lookout on the rear of such train was negligence on defendant's part, contributing directly to the injury, and the plaintiff would be entitled to recover, the jury diminishing the damages in proportion to the default attributable to the deceased."

The objection to the charges above set forth was that the first and third stated what acts constituted negligence on the part of the defendant, and the second stated what would not amount to negligence on the part of the deceased. Under the law of this state, in the trial of cases of the character now under consideration, the question as to what acts do or not constitute negligence is exclusively for determination by the jury, except in those cases where a particular act is declared to be negligence, either by statute or by a valid ordinance of a municipal corporation. See Railway Co. v. Bryant, 110 Ga. 247, 34 S. E. 350, and cases cited; Railroad Co. v. Vaughan, 113 Ga. 354, 38 S. E. 851. While the present case, so far as the righ' of the plaintiff to recover and the measure of damages in the event of a recovery were concerned, was to be tried according to the law of the state of Florida, and on these subjects the courts of this state would apply the law of Florida in exactly the same way it would be applied if the case were pending in one of the courts of that state, our laws would, or course, control in reference to the procedure to be followed. It is immaterial, therefore, for us to consider what would be the practice under the law of Florida in such cases, —whether it would...