Savannah Electric Co. v. McClelland , 128 Ga. 87 ( 1907 )

Beck, J.

(After- stating the facts.) It is complained, in the motion for new trial, that the court, in its instructions to the jury, charged as follows: “If find that the plaintiff gave proper notice to the street-car employees of his desire to become a pas-, senger upon the car in question and that the said car was, in consequence thereof, arrested as if it were going to stop, or did actually stop, by an act of the employee of the defendant, and that then the plaintiff endeavored to get upon said car, then the plaintiff, while so -endeavoring to get on said car, was a passenger under the care of the defendant company as such; and if the jury further find that the plaintiff was injured by the negligent starting of the car, while he was in the act of getting thereon, and while he was himself in the exercise of ordinary care for his own safety, then you would be authorized to find fbr the plaintiff. But if you find, from the evidence, that the car slowed up solely because of nearing a curve, not for the purpose of enabling a' person desiring to do so to become a passenger thereon, and' not in response to any signal or notice from the plaintiff to defendant’s employees, then the plaintiff was not a passenger, and the company would only be bound to exercise ordinary care after the employees of the defendant company knew of his intention to board the car.” This charge was excepted to as erroneous, upon the ground that it authorized the plaintiff to recover if he boarded a moving car before it stopped, or that did not stop; and further because the plaintiff sued only for injuries sustained as a passenger, from suddenly and violently starting the car forward after it had stopped and after he had become a passenger. While the jury were not directly and positively instructed that it would be their duty'to find for the plaintiff under the circumstances hypothetically stated in the last sentence of the excerpt just quoted, the language used would very probably be construed by them as a direction to find for the plaintiff in the event they should believe, from the evidence, that the defendant did not exercise that degree of care and diligence which it would be bound to exercise under the circumstances there stated. From the plaintiff’s petition and evidence it appears that he sought a recovery on the ground that the ear stopped and then suddenly started before he had a reasonable opportunity to safely board it. It is not suggested in the pleadings, nor in the testimony of the plaintiff, that he boarded the car while it was in motion, or at a time when the car had “slowed up because of nearing a curve.” Consequently such a charge gave to the plaintiff the advantage of a theory which he had not alleged in his pleadings, and which he had not attempted to sustain by his evidence. For this reason the charge was error. Savannah Electric Co. v. McElvey, 126 Ga. 491. And we are by no means convinced that the hurtful effect of the error was cured by the fact that in another portion of the charge the court had correctly instructed the jury that “plaintiff must recover, if at all, upon proof that the defendant was negligent in one or more of the ways in which the plaintiff alleged in his petition that defendant was negligent. líe can not recover for any other or different acts of negligence than those alleged in the petition.” Juries should not be left to reconcile conflicting principles of law; nor are they supposed to be able to eliminate errors in the charge, even with the aid of a correct statement of the law preceding or following the erroneous instruction, when their attention is not directed to the conflict between the erroneous and the correct rule, and they are not instructed as to which of the two conflicting principles should be disregarded and which should be observed and applied. Morrison, v. Dickey, 119 Ga. 698.

Judgment reversed.

Fish, G. J., absent. The other Justices concur.