Seabd. Air Line Ry v. Bostock

• Decision Date: 13 February 1907
• Docket Number: (No. 63.)
• Citation: 58 S.E. 136,1 Ga.App. 189
• Parties: SEABOARD AIR LINE RY. v. BOSTOCK.
• Court: Georgia Court of Appeals

58 S.E. 136

(1 Ga.App. 189)

SEABOARD AIR LINE RY.

v.BOSTOCK.

(No. 63.)

Court of Appeals of Georgia.

Feb. 13, 1907.

1. Master and Servant—Action for Injuries—Declaration—Sufficiency.

The declaration as amended is good as against a general demurrer.

2. Trial — Instructions — Law Applicable to Particular Theories.

The principle of law contained in Civ. Code 1895, § 3830, that, "if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." having been clearly and distinctly raised by the answer and the evidence, it was reversible error for the court not to have given this law in charge to the jury, even without any request to do so. Atlanta Ry. Co. v. Gardner, 49 S. E. 818, 122 Ga. 92, 93 (7).

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 478, 630.]

3. Writ of Error—Objections Below—Motion for New Trial—Grounds—Authentication of Statement.

Where one of the grounds in the motion for new trial is the failure of the court to charge the above principle of law, and the question is made before this court that there is no sufficient verification of this ground, the court will examine the record and bill of exceptions to ascertain if such is the fact; and where it appears from the record that said ground of the motion was presented to the trial court, considered, and overruled, and it further appears that the entire charge delivered to the jury had been approved by the judge, and was at that time a part of the record, and, from an examination thereof, it is manifest that the court did not give in charge the foregoing principle, such facts, taken together, will be considered by this court as a sufficient verification of said ground of the motion. Colson v. Meyers, 5 S. E. 504, 80 Ga. 490 (3).

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1156.]

4. Trial — Instructions — Law Applicable to particular theories.

The error of the court set out in the second headnote requiring a new trial, a decision on the other assignments of error is not necessary.

(Syllabus by the Court.)

Error from City Court of Savannah; Norwood, Judge.

Action by one Bostock against the Seaboard Air Line Railway for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed.

The plaintiff alleged that he was employed by the defendant company as a switchman, and while so engaged it became his duty to place against the wheel of a box car a chock, being a piece of scantling four by four inches square, and four or five feet long; that the railroad track ran east and west, and the chock was placed on the south rail of the track, 10 or 12 inches of the end of the chock being between the rails, and the longer part pointing south and being held in its position...