Georgia, Carolina & Northern Rwy. Co. v. Watkins , 97 Ga. 381 ( 1895 )

Lumpkin, J.

1. The charge as a whole fairly submitted the issues involved, and in so far as it dealt with the question as to what degree of diligence should he required of the plaintiff, was substantially in accord with the rulings of this court in Rhodes v. Georgia Railroad, 84 Ga. 320; Central Railroad Co. v. Phillips, 91 Ga. 527, and E. T., V. & G. Ry. Co. v. Hughes, 92 Ga. 388.

2. If additional instructions as to the presumptive capacity of a person above the age of fourteen years would have been pertinent or appropriate, they should have been specially requested.

3. The evidence fully warranted the verdict, and there was no error in refusing to set it aside. Judgment affirmed.

“The degree of diligence that the laAV requires of the plaintiff was that care Avhich Avould reasonably be expected of a boy of his age and capacity. You heard the testimony as to his age; you saw him when he was upon the stand; and in passing upon what degree of care he should kaAn exercised on that occasion, you may take into consideration his appearance on the stand, his manner of testifying, and the capacity that he exhibited while a witness on the stand. As I stated to you, the care that the law requires of him was that care which might be reasonably expected of a person of his age and capacity.” Error, in treating plaintiff as a child of tender years, whereas the charge ought to haAre been that the diligence or care required of him by laAV was ordinary care and diligence, that is, that care which every prudent man takes of his own property; and in failing to state that a young person of plaintiff’s age is presumed to be capable of realizing danger, and of exercising the necessary forethought and caution to aAroid it, and is presumably chargeable AAnth diligence for his own safety, where the peril is palpable and manifest.

“If you find from the evidence in the case, that the plaintiff was attempting to go upon defendant’s coach, and that he was obstructed in the way by other passengers, and that he could not promptly get in the coach, and while he was endcaAmring to make his way in the coach the step he Avas standing on was knocked off by an obstruction on the track, and you find from the evidence in the case that in leaving the step in that condition, and allowing an obstruction upon the track, such as Avould knock the step from its place, the defendant was not in the exercise of that diligence that the laAV requires, the plaintiff would haAre the right to recover.” Error, in that the charge was calculated, to withdraw the attention of/the jury from the diligence required of the plaintiff, and in effect informed the jury that under the facts as related the plaintiff would not be chargeable with a want of care and diligence, thereby making the sole issue in the case whether defendant was negligent.

Erwin, Gobi) & Woolley, for plaintiff in error. A A. Meyer, contra.