Atlanta Railway & Power Co. v. Gaston , 1903 Ga. LEXIS 574 ( 1903 )

Lamar, J.

The plaintiff was injured in a collision between a street-car and his wagon, occurring at the intersection of two narrow streets.' The court charged on the doctrine of comparative negligence, and also that “ the defendant might relieve itself of the statutory presumption by showing that its agents exercised all proper care and diligence to avoid the injury; or that the damage was caused by the negligence of the plaintiff; or that the plaintiff ■could have, by the exercise of ordinary care, avoided the injury caused by defendant’s negligence; and on either or all of these grounds the defendant may rest its defense.” In this and the general charge the judge omitted any statement as to the effect of finding that the injury was occasioned by casualty where neither party was at fault. The defendant in error insists that this omission does not require the grant of a new trial, since there was no evidence warranting a verdict that the injury was occasioned by an accident. The plaintiff contended that he approached the track at a walk, in the exercise of'ordinary care, and failed to seethe car because the building on the corner intercepted the view; and further claimed that the car approached at a high rate of speed without ringing the gong. The testimony of the mortorman and séveral passengers tended to show that the gong was rung, that the speed was proper, that a lookout was kept, and that the plaintiff was driving at a high rate of speed. There was therefore evidence from which the jury could have found that the driver and the mortorman were both in the exercise of ordinary care, and that both the car and the wagon were being driven at a low rate of speed. If the jury had so found, there would have been a clear case of injury resulting from an accident in which neither party was to blame. It often happens that both parties may have been in the right or both in the wrong. But the mutual criminations and recriminations are not necessarily exhaustive of the substantial issues raised b.y the evidence, and as to which the jury must be instructed. Here it could have found that neither was to blame; and that being .true, it was requisite to charge what would be the effect of such a finding. The failure to so charge deprived the company of the benefit of a substantial defense. When under the evidence there are four ways in which the company might relieve itself of the presumption raised by the statute, and the judge only charged as to three, it was the equivalent of saying that the fourth method —■ in this case an accident — would not relieve from the presumption; and where the evidence was so conflicting, the failure so to charge requires the grant of a new trial. It is unnecessary'to consider-the other assignments. Judgment reversed.

By five Justices