Southern Ry. Co. v. Reed
| Citation | 149 S.E. 582,40 Ga.App. 332 |
| Decision Date | 09 September 1929 |
| Docket Number | 19145. |
| Parties | SOUTHERN RY. CO. v. REED. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by Editorial Staff.
Mere negligence of plaintiff, without reference to its causal connection with injury received by him or its degree as respects negligence of defendant, will not bar recovery for injury.
In action for injury, charge that defendant can defeat recovery by showing that injury was proximately caused by plaintiff's own negligence was not objectionable, as limiting jury's consideration to evidence introduced in behalf of defendant in determining question of plaintiff's negligence.
Instruction in action for injury, that, in case both plaintiff and defendant are at fault, damage should be diminished in proportion to amount of default attributable to plaintiff was correct, under Civ. Code 1910, § 2781, and was not objectionable as containing instruction that plaintiff could recover, if his negligence was equal to defendant's.
Charge that plaintiff cannot recover for injury, unless amount of default attributable to him is less than amount of default attributable to defendant, held not objectionable as permitting recovery, without reference to whether plaintiff by exercise of ordinary care could have avoided consequences of defendant's negligence, where court elsewhere instructed that plaintiff could recover only on showing that negligence of defendant proximately caused injury.
Charge on comparative negligence, whereby jury was instructed that plaintiff could not recover, if more at fault than defendant was not erroneous, as instructing jury that plaintiff could recover, if his negligence was equal to that of defendant, where that point was otherwise covered in charge.
Instruction denying recovery to plaintiff if he could have avoided consequences of defendant's negligence by using ordinary care, that plaintiff could not recover unless his default was less than that of defendant, and that, if plaintiff was more at fault, there could be no recovery, held not objectionable, as confusing two propositions of law.
In action for injury, instruction that mortality table introduced in evidence could be used by jury in arriving at damages held not objectionable, as authorizing jury to use mortality tables alone, where court instructed that recovery should be under the rules which the court had already given.
Instruction with reference to computation of damages for permanent injury, and reducing amount found to present cash valuation, held not objectionable as assuming permanent injuries, where there was evidence from which jury could have inferred that injuries received by plaintiff were permanent character.
In action against railroad for injuries, court did not err in excluding evidence of witness estimating height of engine above road in approaching crossing, where witness had testified as to height of engine from rails, and as to height of track at crossing above level of public road.
In action to recover value of personal property claimed to have been destroyed through defendant's negligence, testimony of person from whom plaintiff bought the property that he had taken it back from another purchaser was not harmful to defendant.
Error in giving charge as to law embodied in statute claimed to be unconstitutional was not presented for review, where there was no exception to the charge.
Error from Superior Court, Whitfield County; C. C. Pittman, Judge.
Action by J. C. Reed against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Maddox, Maddox & Mitchell, of Dalton, for plaintiff in error.
W. E. & W. G. Mann, of Dalton, for defendant in error.
Syllabus OPINION.
1. A statement that a person fails to exercise ordinary care is equivalent to a statement that he is negligent. Since the mere negligence of a plaintiff, without reference to its causal connection with the injury received by him, and without reference to its degree as respects the negligence of the defendant, is not sufficient to bar a recovery, the court properly refused the defendant's requests to charge which embodied the propositions that, if the plaintiff failed generally to exercise ordinary care, or failed to exercise ordinary care in going upon the defendant's railroad track, or to discover the approach of the defendant's train, or to avoid the injury which he received, the plaintiff could not recover.
2. A charge that a defendant railroad company can defeat a recovery by showing that the injury to the plaintiff was proximately caused by the plaintiff's own negligence is not subject to the objection that it limited the jury to a consideration only of the evidence introduced in behalf of the defendant, in determining whether the plaintiff's injury was caused by his own negligence. This charge clearly must have been understood by the jury as authorizing it to consider all the evidence, including that offered in behalf of the plaintiff as well as that offered in behalf of the defendant, in determining whether the plaintiff by his own negligence proximately caused his injury. Therefore a request to charge, made by the defendant, that the plaintiff cannot recover if the jury find from the evidence that the plaintiff's injury was caused by his own negligence, was covered by the charge given, and was therefore properly refused.
3. A charge that, if the plaintiff and the defendant are both at fault, the plaintiff may nevertheless recover, but the damage should be diminished in proportion to the...
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