Southern Railway Co. v. Free ( 1909 )

Smith, J.,

delivered the opinion of the court.

After sustaining a demurrer to the second count of appellee’s amended declaration, thereby holding that the appellant would be liable for the death of Monroe Free only in the event that his death was caused by the wilful or wanton negligence of appellant, the correctness, of which ruling is not now before us, the court very singularly charged the jury that, if appellant’s employes failed to use ordinary care on the occasion in question, such failure would constitute wilful and wanton negligence. A failure to use ordinary care and wilful and wanton negligence are very different things, and are not equivalents of each other.

For the error in this instruction, the judgment of the court below is reversed, and the cause remanded.

Reversed.