Stewart v. Mynatt
| Decision Date | 14 February 1911 |
| Citation | 70 S.E. 325,135 Ga. 637 |
| Parties | STEWART et al. v. MYNATT. MYNATT v. STEWART et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The refusal of a nonsuit was proper.
On the trial of an action against the proprietors of a public skating rink for damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendants, wherein the defendants, after denying generally all the material allegations of the petition, pleaded that the plaintiff's injuries, if any were caused by her own negligence, it was not error for the court to instruct the jury that, the plaintiff having made out a prima facie case, "the burden is on the defendants to establish by a preponderance of the testimony that the plaintiff is guilty of any negligence which caused her injuries."
It was error, on the trial of the action above referred to, for the court to instruct the jury as follows: "It would be the duty of the defendants to exercise ordinary care to enforce these rules which they had prescribed for the protection of persons who were skating." What ordinary care would require the defendants to do was for the jury, in the absence of a statute or municipal ordinance imposing on them the duty of doing certain specific acts.
The failure of the court to give to the jury instructions as to the law of proximate cause, and as to the meaning of the words, "and that negligence caused her injury," was not, under the facts of the case, cause for a new trial.
Where an action was brought by M. against S. & S. and a named corporation, and the plaintiff's right to recover depended, as to all the defendants, upon substantially the same state of facts, and there was a verdict in the plaintiff's favor against S. & S., and a verdict was directed by the court against the plaintiff in favor of the corporation, whereupon two motions for a new trial were filed, one by the defendants S. & S., and the other by the plaintiff, the former also filing with their motion a complete brief of the evidence, but none being filed by the plaintiff, it was within the power of the judge, for the purpose of hearing and determining these motions while pending before him, to treat this brief of evidence as a portion of the general record of the case, and therefore as a part of the plaintiff's motion for a new trial; and this court will not dismiss the bill of exceptions filed by the plaintiff, assigning error upon the overruling of such motion for a new trial made by her.
The evidence demanded the verdict, which was directed by the court in favor of the corporation.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by Lillian Mynatt against R. M. Stewart, Sr., and others. Judgment for plaintiff against the mentioned defendant, and in favor of the other defendant against plaintiff, and the mentioned defendant brings error; plaintiff filing cross-exceptions. Reversed on the main bill of exceptions and affirmed on the cross-bill.
Anderson Felder, Rountree & Wilson, for plaintiff in error.
W. R Hammond, for defendant in error.
Miss Lillian Mynatt brought an action for damages for personal injuries caused by the alleged negligence of the defendants, against Stewart & Son, a partnership composed of R. M. Stewart and R. M. Stewart, Jr., and against the St. Nicholas Rink Company, a corporation. On the trial the court directed a verdict in favor of the St. Nicholas Rink Company. At the conclusion of the evidence in behalf of the plaintiff, the Stewarts moved for a nonsuit, which was refused. There was a verdict for the plaintiff against the Stewarts, and they moved for a new trial, and excepted to the overruling of the motion, and assigned error also upon the refusal of the nonsuit.
1. After a careful consideration of the evidence submitted in behalf of the plaintiff, we are of the opinion that it was sufficient to take the case to the jury, and that therefore the court did not err in refusing the nonsuit.
2. One of the grounds of the motion for a new trial complains that the court erred in instructing the jury that "the burden is on the defendants to establish by a preponderance of the testimony that the plaintiff is guilty of any negligence which caused her injuries." In our opinion this charge was not erroneous. This is not a case where the plaintiff alleged certain acts of negligence on the part of the defendants, whereby the plaintiff was injured and damaged as specifically set forth, and where the defendants merely denied all of plaintiff's allegations in respect to the defendant's negligence and as to plaintiff's injuries, which would be in effect a plea of the general issue. In that kind of a case evidence in behalf of the defendant, which would equally balance the plaintiff's evidence, would be sufficient to defeat the action. In the case now before us the defendants not only denied all the material allegations in the plaintiff's petition, but set up an affirmative defense that the plaintiff's injuries, if any, were caused by her own negligence. Therefore, in accordance with the rule that "the burden of proof generally lies upon the party asserting or affirming a fact, and to the existence of whose case or defense the proving of such fact is essential" (Civ. Code 1910, § 5746), the burden rested upon the defendants, after the plaintiff had made out a prima facie case, to show by a preponderance of the evidence, in order to sustain their plea, that the plaintiff's injuries were caused by her own negligence. When the plaintiff submitted evidence of the negligence of the defendants, as alleged in her petition, and that her injuries as set forth were caused thereby, and such evidence was sufficient to take the case to the jury, then she made out a prima facie case, and was not bound to go further and show her own diligence. Whether or not by the exercise of ordinary care the plaintiff could have prevented the injuries was a matter of defense. Georgia Midland, etc., R. Co. v. Evans, 87 Ga. 673 (1), 13 S.E. 580, and authorities cited; City Council of Augusta v. Hudson, 88 Ga. 599 (3), 15 S.E. 678. See Central, etc., Ry. Co. v. Brandenburg, 129 Ga. 115 (1), 58 S.E. 658.
3. In another ground of the motion error was assigned upon this extract from the charge: The exception was that the court here in effect instructed the jury that the failure of the defendants to exercise ordinary...
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