Atlanta & West Point Railroad v. Hudson , 123 Ga. 108 ( 1905 )

Lumpkin, J.

(After stating the facts.) 1, 2. Several charges of the judge were alleged as error on the ground that they undertook to instruct the jury what acts ordinary care required the employees of the company to do. In one instance he charged as follows: “You will look to all these questions under the evidence in this case, to determine the truth of the same for yourselves ; for the law imposes the duty on the railroad company to maintain a lookout to discover cattle on its track, to stop its train as soon as cattle appear upon its track, or in the act of approaching it, or so near to the same that a slight change of position by them would result in their destruction or injury.” This was error. "In the trial of an action in a court of this State, for a negligent tort, it is error for the court to tell the jury what facts do or do not constitute negligence, unless there is a statute or valid municipal ordinance which in terms or in effect declares the act referred to to be negligence.” Savannah Ry. Co. v. Evans, 115 Ga. 315, 316.

That the Supreme Court may employ certain language in discussing a case, especially in regard to the facts under consideration, does not necessarily render such language proper for use by the judge of a trial court in charging a jury. A Justice of the Supreme Court, in giving reasons for a judgment rendered, often uses argumentative language which would be wholly inappropriate for use in a charge by a judge of a trial court. There is no prohibition of law against an expression of opinion on the facts of the case by the Supreme Court. There is a direct prohibition as to an expression of such an opinion by a trial judge in his charge. Civil Code, § 4334. The. presiding judge gave to the jury, as propositions of law, substantially certain statements which were made in opinions of this court in discussing the facts of cases then before it. East Tenn. Railway Co. v. Burney, 85 Ga. 636; Central of Ga. Ry. Co. v. Ross, 107 Ga. 75; Atlantic Coast Line R. Co. v. Williams, 120 Ga. 1046, 1047. What was said in those decisions was in connection with the question of whether the verdicts were sustained by the evidence, and whether there was in fact evidence of negligence. The difference between such discussions aud legal propositions suitable for a charge is obvious. The trial judge should not tell the jury what acts would constitute negligence, and what would not, but should instruct them as to the proper measure of diligence, and leave them to determine, in view of all the evidence bearing on the subject of the time, place, circumstances, and happenings, whether there was or was not a want of due care. Central of Ga. Ry. Co. v. McKenney, 118 Ga. 535; Calvin v. State, 118 Ga. 73; Savannah, F. & W. Ry. Co. v. Evans; 115 Ga. 315, 316, supra. There is no. conflict between this ruling and that in Western & Atlantic R. Co. v. Burnham, 123 Ga. 28. There is a wide difference between charging as to a duty imposed by law upon a carrier of passengers, and telling the jury that it was the duty of the railroad company to do certain specified acts to avoid injury to cattle along the road.

3. The measure of duty required of the employees of a railroad company in respect to stock along the line of its road is ordinary care. A charge which submitted to the jury to determine whether the defendant company “did use all the me'ans at its command ” declared too stringent a rule, and was erroneous. See cases cited in Hopkins on Personal Injuries, § 59 ; Florida Central and Peninsular R. Co. v. Lucas, 110 Ga. 121, 123.

Judgment reversed.

All the Justices concur, except Candler, J., absent.