Thomas v. Gainesville & Dahlonega Electric Railway Co.

Cobb, P. J.

(After stating the foregoing facts.) One of the grounds in the motion for a new trial complained of the following extract from the charge of the court: “If the plaintiff was guilty of any act of negligence which directly contributed to his injury., or was guilty of any failure of ordinary care on his part, whether the act be a question of only omission to do what he ought to have done under the circumstances, or an act of commission in doing something that he should not have done and without which the accident would not have happened, then 'you would go further and apportion the injury, but the plaintiff’s contributory negligence in such case defeats recovery, and your verdict must be for the defendant.” This charge was erroneous, inasmuch as it instructed the jury that the plaintiff’s contributory negligence would defeat re-, covery, and the verdict, if such contributory negligence were found, must be for the defendant. The instruction should have been qualified by the principles of law as laid down in the Civil Code, §§3830, 2322. The charge was in other respects inaccurate, but it is needless to discuss at length these inaccuracies, as they will doubtless be corrected on another trial.

The evidence was of such a character as to authorize .the submission to the jury of the question whether the plaintiff had received any amount in settlement of his claim for damages, and whether the receipt purporting to have been signed by him by his mark, he being illiterate, was binding upon him. The charge on this subject, which was complained of, correctly set forth the law as laid down in East Tenn., Va. & Ga. Ry. Co. v. Rayes, 83 Ga. 558, and was appropriate for the reason that this was the defendant’s theory of the case. But under the plaintiff’s theorjr, the rule as laid down ip. Butler v. Richmond & Danville R. Co., 88 Ga. 594, was applicable, and the'judge should have instructed the jury on both theories of the case.

Judgment reversed.

All the Justices concur.