Western & A. R. Co v. Casteel

• Citation: 75 S.E. 609,138 Ga. 579
• Parties: WESTERN & A. R. CO. v. CASTEEL.
• Decision Date: 17 August 1912
• Court: Georgia Supreme Court

75 S.E. 609

(138 Ga. 579)

WESTERN & A. R. CO.

v.CASTEEL.

Supreme Court of Georgia.

Aug. 17, 1912.

(Syllabus by the Court.)

1. Trial (§ 191^*)—Instructions—Province of Jury—Negligence.

It is error to instruct a jury that certain enumerated facts constitute negligence, where the law does not declare such to be negligence.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]

2. Negligence (§ 122*)—Actions—Burden of Proof.

In a suit for a personal injury arising from a negligent tort (where the doctrine known as the master and servant rule does not apply), the burden does not rest on the plaintiff, as part of his case, to show his freedom from negligence, but contributory negligence is matter of defense. It may, however, appear from the evidence introduced by either party.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 221-223, 229-234; Dec. Dig. § 122.*]

Error from Superior Court, Cobb County; N. A. Morris, Judge.

Action by A. J. Casteel, by next friend, against the Western & Atlantic Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Tye, Peeples & Jordan, of Atlanta, and D. W. Blair, of Marietta, for plaintiff in error.

Clay & Morris, of Marietta, for defendant in error.

EVANS, P. J. [1] The plaintiff, a youth of 13 years, with three companions, was playing on a turntable of the defendant railroad company, when he was Injured. In a suit for the injury he alleged that the railroad company was negligent in maintaining upon its premises, without guard or adequate protection, the turntable, which was dangerous to life and limb, and of a nature to invite the intrusion of children. The defendant denied any negligence in this particular. The court charged the jury: "I give you this rule: Where a railroad company leaves a dangerous machine, such as a turntable, if you believe that the table was a dangerous machine, unfastened in a city on a lot which is not securely inclosed, and where people and children are wont to visit it and pass through it, this is negligence on the part of said company." This instruction contained an expression of opinion that certain acts constituted negligence. The court may not so instruct the jury, unless such acts are declared by law to be negligence. L. & N. R. Co. v. Arp, 136 Ga. 489, 71 S. E. 867.

The court also charged that "the degree or measure of care which the child was required to exercise was that which is ordinarily exercised, and which is to be reasonably expected from a child of his years and experience, under the circumstances he was in, as shown by the evidence; and before the jury can find him guilty of...