Central of Georgia Railway Co. v. Deas , 22 Ga. App. 425 ( 1918 )

Luke, J.

Some elaboration • of the principle embodied in the third headnote, as applied to this case, is deemed appropriate. In an action for damages by a passenger against a railway company, when it is established that thé personal injuries complained of were , qccasioned by the operation of the defendant’s locomotives or cars, a presumption of liability arises against the company; which prima facie case, however, is rebutted if from the evidence of the defendant, or from that of the plaintiff himself, it appears that any one of the following defenses is established.: (1) that the injury was done with the consent of the plaintiff, or was caused by his own negligence (Civil Code of 1910, § 2781); (2) that the plaintiff could by ordinary care have avoided the consequences to himself caused by the defendant’s negligence after such negligence had, or in the exercise of ordinary diligence should have, become known (Civil Code of 1910, § 4426); or (3) that the defendant had in fact exercised extraordinary diligence in protecting the person of the plaintiff. Civil Code (1910), §§ 2780, 2714; Douthitt v. L. & N. Railroad Co., 136 Ga. 351 (71 S. E. 470).

The instruction complained of in the seventh ground of-the motion for a new trial is as follows: “Failure to exercise ordinary care upon the part of the plaintiff, after negligence is apparent, or should have been reasonably apparent to him, or apprehended by him, will preclude a recovery in any [italics ours] amount by the plaintiff, if there is no negligence [italics ours] attributable to the defendant.” It is manifest that the.trial judge committed error in this particular portion of his charge. In the first place, the mere failure of the plaintiff to exercise ordináry diligence in avoiding the consequences of the railway company’s negligence after it had or should have been known may or may not preclude a recovery by him, since it is only when by the exercise of such care on his part the consequences of such negligence would have been avoided that his failure in this respect will altogether prevent a recovery. Americus &c. Railroad Co. v. Luckie, 87 Ga. 6, 7 (18 S. E. 105). But the error in the instruction complained of in the motion for a new trial, and which it is insisted injuriously affected the rights of the defendant company, consists in the last qualifying clause of the excerpt, by which the bar to the plaintiff’s right of recovery on account of his failure to exercise such ordinary care is limited to where' there is no negligence attributable to the defendant. To us it is apparent that, despite this error, the trial judge correctly understood, and had in mind, the true principle of law here involved, but the question is, could tlie jury have been confused or misled by the incorrect statement as made, or do the rulings of the court demand a reversal because of this error? It is true that the judge, upon the same subject and in the same connection, continued his charge as follows: “The duty imposed by law upon persons does not arise until the negligence of the other party exists, until an ordinary prudent person under like circumstances would have reason to apprehend if negligence there was. If the railroad company is negligent in the particulars alleged in the petition, and the plaintiff is also negligent, and his negligence along with the negligence of the defendant, both, contributing together, caused the injury, and if it would not have been caused by the negligence of the defendant unless the plaintiff also had been negligent, and his negligence contributed as a direct cause of the injury, that would make a case of contributory negligence where the plaintiff would not be entitled to recover of the defendant.” But in Savannah, Florida & Western Ry. Co. v. Hatcher, 118 Ga. 273 (45 S. E. 239), the Supreme Court said that “The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies another, without being instructed so to do by the judge.” In Western & Atlantic R. Co. v. Clark, 117 Ga. 548 (44 S. E. 1), it was said: “Where an erroneous rule of law is given to the jury,on a material issue in the case, 'and is of such a nature as is calculated to mislead them, a new trial will be granted notwithstanding the correct rule may have been announced in other portions of the charge.” See also Morris v. Warlick, 118 Ga. 421 (45 S. E. 407); Morrison v. Dickey, 119 Ga. 698 (46 S. E. 863); Bennett v. Atlantic Coast Line R. Co., 126 Ga. 411, 413 (55 S. E. 177); Cress v. State, 126 Ga. 564 (55 S. E. 491); Rowe v. Spencer, 132 Ga. 426 (64 S. E. 468); Pelham Mfg. Co. v. Powell, 6 Ga. App. 308 (64 S. E. 1116). The excerpts from the charge here complained of are in terms contradictory, and fail to furnish the jury with a correct rule or guide. The two excerpts when, taken together were calculated to mislead or confuse the jury. We are of the opinion that the error pointed out could have misled, and 'perhaps did mislead, the jury. Suffice it to say that in our opinion the jury were erroneously instructed, and the erroneous instruction was not cured by any prior or subsequent instruction. Judgment reversed. Wade, C. J., concurs. Jenkins, J., dissents.