Western & A.R. Co. v. Rogers

• Decision Date: 13 April 1898
• Parties: WESTERN & A. R. CO. v. ROGERS.
• Court: Georgia Supreme Court

30 S.E. 804

104 Ga. 224

WESTERN & A. R. CO. v. ROGERS.

Supreme Court of Georgia

April 13, 1898

Syllabus by the Court.

1. In the trial of an action against a railroad company for personal injuries, it is error in the court to charge sections 2322 and 3830 of the Civil Code in immediate connection with, each other, and without proper explanation. Railroad Co. v. Luckie, 13 S.E. 105, 87 Ga. 6. These two sections of the Code are separate and distinct, and it is not the purpose of these statutes to qualify the one by the other.

2. "Due care, according to age and capacity, is all the law exacts of a child of tender years. Ordinary care, which is that of every prudent man, is not the standard for a child." Hence it was error to charge the jury, in effect, that, if a child had not the capacity to exercise the care of a prudent man, it would not be chargeable with any negligence at all.

3. The failure of a railroad company to inclose its tracks so as to prevent children and others from trespassing upon the right of way cannot be imputed to the company as negligence. It was therefore error for the court to charge the jury that such failure "is evidence to be considered by you, along with all the other evidence, in determining whether or not the defendant has been guilty of negligence in this case."

4. Under the facts of the present case, if there was any negligence in the railroad company's permitting timbers to be placed from its track across a ditch for the purpose of facilitating passage over it, such negligence did not contribute to the injury of the plaintiff. It was therefore error for the court to charge that, in arriving at a conclusion whether or not the defendant was negligent, the jury could consider the removal of such timbers by the company after the time of the injury.

5. Other than as above indicated, there was no material error in the rulings of which complaint is made.

Error from superior court, Bartow county; A. W. Fite, Judge.

Action by Dock Rogers, by his next friend, against the western & Atlantic Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Payne & Tye and J. M. Neel, for plaintiff in error.

John W Akin, for defendant in error.

SIMMONS C.J.

1. Rogers, by next friend, sued the Western & Atlantic Railroad Company for damages on account of personal injuries sustained, as he claimed, by reason of the negligence of the servants of the company. The court, in instructing the jury charged sections 2322 and 3830 of the Civil Code in immediate connection with each other. The former of these sections provides that no persons shall recover damages for injury to himself when the same is done by his consent, or is caused by his own negligence. The latter provides 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." To charge these sections in immediate connection with each other, without any explanation as to their different meanings, has been held error so frequently by this court that we deem it unnecessary to elaborate, in this opinion, the reasons for such ruling. The ruling made in the case of Railroad Co. v. Luckie, 87 Ga. 6, 13 S.E. 105, has been steadily adhered to by the court, and was followed at this term in the case of Railway Co. v. Holmes, 30 S.E. 563.

2. At the time Rogers was injured, he was an infant of tender years. The trial judge, in charging the jury as to care or diligence in a case of this kind, read section 2898 of the Civil Code, which is as follows: "Ordinary diligence is that care which every prudent man takes of his own property of a similar nature. The absence of such diligence is termed ordinary neglect." After reading this section, he, in effect, instructed the jury that if the child had not the capacity to exercise the care of a prudent man, it would not be chargeable with any negligence at all. We think that the learned judge who tried the case did not intend that his charge upon this point should be so construed by the jury but a careful reading of it compels us to say that such is the effect of the instruction. He charged, after defining ordinary diligence as above set forth: "Look to the evidence, and determine upon the capacity of the plaintiff at the time of the alleged injury. If you find that he had sufficient capacity to exercise ordinary care in a transaction of this sort, then the rule of law which I give you would apply to this case, and he would not be entitled to recover anything, if you find that he, by the exercise of ordinary care, could have avoided the consequences to himself caused by defendant's negligence." The rule of law laid down by the judge was the care of a prudent man. He, in the next sentence, instructed the jury that, if the plaintiff had the capacity to exercise ordinary care in a transaction of this sort, then the rule given would apply to the case, and the plaintiff could not recover if guilty of negligence. The meaning of this...