Augusta-Aiken Railway & Electric Corp. v. Collins , 18 Ga. App. 303 ( 1916 )

Hodges, J.

In this case the railway company was sued for personal injuries, and the jury found a verdict in favor of the plaintiff. The record presents two very serious objections to the charge of the court. In the opinion of this court, the trial judge erred in saying to the jury that they would be “ authorized” to diminish the amount of the verdict, in proportion to the amount of the' fault attributable to the plaintiff, in the event they found both parties at fault or negligent, and found that the plaintiff could not have avoided by the exercise of ordinary care and diligence the consequences of the negligence of the defendant. This is not the law. In such a case the law requires the jury to diminish the amount of damages in proportion to the amount of fault attributable to the plaintiff. Civil Code, § 2781. The court should have instructed the jury that if they believed, from the evidence, that both parties were at fault, and that the alleged injury was the result of the fault of both, and further found from the evidence that the plaintiff, by the exercise of ordinary care and diligence, could not have avoided the injury caused by the defendant’s negligence, then, notwithstanding that the plaintiff might have been to some extent negligent, the plaintiff would be entitled to damages, but the amount should be diminished by the jury in proportion to the amount of fault attributable to the plaintiff; and that the plaintiff could not recover if he was guilty of negligence contributing to the injury, unless it should appear that the negligence of the defendant was the proximate cause of the injury. It will he observed that the learned trial judge used the expression “authorize,” whereas the code requires that in such a case the jury “shall” diminish the amount of damages in proportion to the amount of fault attributable to the plaintiff.

3. The judge instructed the jury as to the duty of the motorman under certain circumstances. It is error for the court to instruct the jury as to what is diligence or negligence, except negligence which is as a matter of law negligence, — that is, negligence per se. The question as to what is diligence or negligence is peculiarly a question for the jury. In this case the court instructed the jury: “If there is one near the track, or on the track in danger, in an intoxicated condition, or under circumstances that would impress a reasonable man that the party was in no condition to care for himself, or to protect himself, and that he was not going to get out of danger, then it would he his duty to regulate his speed and stop in time not to injure him.” This was an expression of an opinion on the part of the court as to what, would constitute ordinary care and diligence on the part of the motorman running this car. It was for the jury to say whether or not it was the duty of the motorman “to regulate his speed and stop in time not to injure” the person on the track. In charging a jury it is improper for a trial judge to use language of a reviewing court in discussing a case, if such language expresses an opinion as to what is ordinary care and diligence. Macon Ry. & Light Co. v. Vining, 123 Ga. 770 (3), 772 (51 S. E. 719). Courts óf review are not bound by the “dumb law” that restrains the trial judge from the expression of ah opinion on a question of fact.

3. The other questions raised by the record in this case are not passed upon, as they probably will not arise in the next trial.

Judgment reversed.