2020 Georgia Code
Title 46 - Public Utilities and Public Transportation
Chapter 8 - Railroad Companies
Article 10 - Liability of Companies for Damages Generally
§ 46-8-291. Consent and Contributory Negligence as Defenses; Comparative Negligence as Affecting Amount of Recovery

Universal Citation: GA Code § 46-8-291 (2020)

No person shall recover damages from a railroad company for injury to himself or his property where the same is done by his consent or is caused by his own negligence, provided that if the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of fault attributable to him.

(Orig. Code 1863, § 2979; Code 1868, § 2980; Code 1873, § 3034; Code 1882, § 3034; Civil Code 1895, § 2322; Civil Code 1910, § 2781; Code 1933, § 94-703.)

Law reviews.

- For article discussing defenses to action for wrongful death in Georgia, see 22 Ga. B.J. 459 (1960). For article, "Reappraising the Jury's Role as Finder of Fact," see 20 Ga. L. Rev. 123 (1985). For note "Plaintiff's Last Clear Chance and Comparative Negligence in Georgia," see 6 Ga. St. B.J. 47 (1969). For comment on Aycock v. Callaway, 78 Ga. App. 219, 51 S.E.2d 53 (1948), see 11 Ga. B.J. 495 (1949). For comment discussing Georgia's comparative negligence laws in light of Maki v. Frelk, 85 Ill. App. 2d 439, 229 N.E.2d 284 (1967), see 19 Mercer L. Rev. 486 (1968).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Comparison of Section with Common Law
  • Comparison of Section with § 51-11-7
  • Comparative Negligence Rule
  • When Plaintiff's Negligence Bars Recovery
  • Plaintiff's Standard of Care
  • Other Defenses
  • Trespassers
  • Recovery by Guests
  • Jury Questions
  • Instructions

General Consideration

Cases to which this Code section applicable.

- Former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291) referred only to cases where concurring negligence of plaintiff and defendant combined proximately to cause injury. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

Accidents not within section.

- Where the injury received by the plaintiff resulted from a mere accident, former Code 1882, § 3034 (see O.C.G.A. § 46-8-291) did not apply. Murphy v. Atlanta & W.P.R.R., 89 Ga. 832, 15 S.E. 774 (1892).

Violation of stock law as evidence.

- The existence of a stock law in any locality is a fact which the jury may consider, in ascertaining the amount of care and diligence exercised by each of the parties to the transaction, and in apportioning the extent of the liability of the company, if any. Central R.R. v. Hamilton, 71 Ga. 461 (1883).

Cited in Macon & W.R.R. v. Davis, 18 Ga. 679 (1855); Baston v. Georgia R.R., 60 Ga. 339 (1878); Stiles v. Atlanta & W.P.R.R., 65 Ga. 370 (1880); Americus, P. & L.R.R. v. Luckie, 87 Ga. 6, 13 S.E. 105 (1891); Brunswick & W.R.R. v. Gibson, 97 Ga. 489, 25 S.E. 484 (1895); Southern Ry. v. Morrison, 105 Ga. 543, 31 S.E. 564 (1898); Central of Ga. Ry. v. McKenney, 116 Ga. 13, 42 S.E. 229 (1902); Western & A.R.R. v. Burnham, 123 Ga. 28, 50 S.E. 984 (1905); Macon & B. Ry. v. Parker, 127 Ga. 471, 56 S.E. 616 (1907); Charleston & W.C. Ry. v. Camp, 3 Ga. App. 232, 59 S.E. 710 (1907); Central of Ga. Ry. v. Brown, 138 Ga. 107, 74 S.E. 839 (1912); Georgia S. & F. Ry. v. Thornton, 144 Ga. 481, 87 S.E. 388 (1915); Hines v. Malone, 25 Ga. App. 781, 105 S.E. 37 (1920); Atlantic Coast Line R.R. v. Fulford, 33 Ga. App. 631, 127 S.E. 812 (1925); Seaboard Air-Line Ry. v. Sarman, 38 Ga. App. 637, 144 S.E. 810 (1928); Southern Ry. v. Cochran, 29 F.2d 206 (5th Cir. 1928); Western Union Tel. Co. v. Stephenson, 36 F.2d 47 (5th Cir. 1929); Southern Ry. v. Tudor, 46 Ga. App. 563, 168 S.E. 98 (1933); Taylor v. Morgan, 54 Ga. App. 426, 188 S.E. 44 (1936); Pollard v. Boatwright, 57 Ga. App. 565, 196 S.E. 215 (1938); Wallace v. Howard, 58 Ga. App. 428, 198 S.E. 812 (1938); Gazaway v. Nicholson, 61 Ga. App. 3, 5 S.E.2d 391 (1939); Southern Ry. v. Maddox, 63 Ga. App. 508, 11 S.E.2d 501 (1940); Lord v. Southern Ry., 70 Ga. App. 273, 28 S.E.2d 299 (1943); Porter v. Southern Ry., 74 Ga. App. 546, 40 S.E.2d 438 (1946); Western & Atl. R.R. v. Burnett, 79 Ga. App. 530, 54 S.E.2d 357 (1949); Atlantic Coast Line R.R. v. Layne, 88 Ga. App. 674, 77 S.E.2d 565 (1953); Southern Ry. v. Jolley, 267 F.2d 934 (5th Cir. 1959); Southern Ry. v. Neely, 284 F.2d 633 (5th Cir. 1960); Central of Ga. Ry. v. Brower, 218 Ga. 525, 128 S.E.2d 926 (1962); Southern Ry. v. Campbell, 309 F.2d 569 (5th Cir. 1962); Southern Ry. v. Jackson, 375 U.S. 837, 84 S. Ct. 77, 11 L. Ed. 2d 65 (1963); Jackson v. Southern Ry., 317 F.2d 532 (5th Cir. 1963); Seaboard Coast Line R.R. v. Clark, 122 Ga. App. 237, 176 S.E.2d 596 (1970); Morris v. Affleck, 437 F.2d 82 (1st Cir. 1971); McClain v. Seaboard Coast Line R.R., 473 F.2d 357 (5th Cir. 1973).

Comparison of Section with Common Law

Comparative negligence not common law.

- So much of former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291), as related to comparative negligence and diminution of damages was not a common-law doctrine. Seaboard Air-Line Ry. v. Andrews, 140 Ga. 254, 78 S.E. 925, 1914D Ann. Cas. 165 (1913).

This section and

§ 51-11-7 changed common law. - The common-law rule that if the injury to or death of a person resulted from any negligence attributable to the person, regardless of the degree, there could be no recovery, and no apportionment of damages, was changed in this state by former Code 1933, §§ 94-703 and 105-603 (see O.C.G.A. §§ 46-8-291 and51-11-7. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6 (1955). But see Garrett v. NationsBank, 228 Ga. App. 114, 491 S.E.2d 158 (1997).

Plaintiff's negligence a bar to recovery under common law.

- Under the common-law doctrine of contributory negligence, which now prevailed in most jurisdictions but which had been changed by former Code 1933, §§ 94-703 and 105-603 (see O.C.G.A. §§ 46-8-291 and51-11-7), if the negligence of the plaintiff, no matter how small, contributed to the injury sustained by plaintiff, plaintiff could not recover of the defendants; this doctrine did not diminish the damages but precluded a recovery. The doctrine which prevails in this state, by reason of the statutes, is more accurately and properly designated as that of comparative negligence, rather than that of contributory negligence. Rogers v. McKinley, 48 Ga. App. 262, 172 S.E. 662 (1934), later appeal, 52 Ga. 161, 182 S.E. 805 (1935); Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936).

Doctrine of contributory negligence has no place in rule of comparative negligence under this section.

- The doctrine of contributory negligence under the common law and that doctrine as modified by the rule of the last clear chance under the common law, have no place in the rule of comparative negligence and apportionment of damages under former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291) as such. Smith v. AMOCO, 77 Ga. App. 463, 49 S.E.2d 90 (1948).

Comparison of Section with § 51-11-7

This section not identical with § 51-11-7. - The defense provided for in former Code 1873, § 2792 (see O.C.G.A. § 51-11-7), was not identical with that under former Code 1882, § 3034 (see O.C.G.A. § 46-8-291); and while the doctrine of contributory negligence applied to both sections, yet the particular act of negligence in proof must be such as contributed to the thing that caused the injury sued for. Central R.R. v. Harris, 76 Ga. 501 (1886).

Construction in pari materia.

- Former Civil Code 1910, §§ 2781 and 4426 (see O.C.G.A. §§ 46-8-291 and51-11-7) to be construed in pari materia. Southern Ry. v. Nichols, 135 Ga. 11, 68 S.E. 789 (1910); Wrightsville & T.R.R. v. Floyd, 17 Ga. App. 461, 87 S.E. 688 (1916).

The qualification put upon former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291) was that contained in § 51-11-7, which two sections were in pari materia and must be construed with reference to each other. Georgia Power Co. v. Gillespie, 48 Ga. App. 688, 173 S.E. 755 (1934).

Sections provide distinct limitations on right to recover.

- The defense stated in former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291) to the effect that a plaintiff cannot recover for injuries caused by plaintiff's consent or due to plaintiff's own negligence is separate and distinct from the additional limitation or qualification of the right to recover stated in former Civil Code 1910, § 4426 (see O.C.G.A. § 51-11-7), which provided that notwithstanding the perilous situation might have been brought about in whole or in the greater part by the negligent acts of the defendant, it was nevertheless incumbent upon the injured party to exercise the care of an ordinarily prudent person to ascertain the defendant's negligence and thereafter to avoid its consequences. Donaldson v. Central of Ga. Ry., 43 Ga. App. 480, 159 S.E. 738 (1931).

Former Civil Code 1910, §§ 2781 and 4426 (see O.C.G.A. §§ 46-8-291 and51-11-7) not identical and should not be confused. This section provided that no recovery from a railroad company can be had where an injury has been occasioned by the plaintiff's own negligence (lack of ordinary care); while former § 4426 forbid a recovery where the plaintiff by ordinary care could have avoided the consequences to oneself caused by the defendant's negligence. Georgia Power Co. v. Holmes, 175 Ga. 487, 165 S.E. 284 (1932).

Defense granted by

§ 51-11-7 not limited by this section's comparative negligence rule. - Former Code 1933, § 105-603 (see O.C.G.A. § 46-8-291) gave defendant complete and perfect defense that was in no way limited by comparative negligence rule embodied in former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291). Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542 (1938).

Distinction between active and passive plaintiffs.

- Former Civil Code 1895, § 2322 (see O.C.G.A. § 46-8-291) dealt with an active plaintiff who personally caused the injury. Former Civil Code 1895, § 3830 (see O.C.G.A. § 46-8-291) dealt with a plaintiff who may have been passive, and may therefore not have caused, but might have avoided the injury. Neither section is exhaustive of defenses which may be made. But relating, as they do, to different conditions, the two sections should not be charged in immediate connection one with the other, but separate and apart. Macon & B. Ry. v. Anderson, 121 Ga. 666, 49 S.E. 791 (1905).

Applicability of

§§ 46-8-291 and51-11-7 to all kinds of negligence. - Former Code 1933, §§ 94-703 and 105-603 (see O.C.G.A. §§ 46-8-291 and51-11-7) were applied to all kinds of negligence except when special statute governs. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

Applicability of

§§ 46-8-291 and51-11-7 to action against railroad. - Both former Code 1933, §§ 94-703 and 105-603 (see O.C.G.A. §§ 46-8-291 and51-11-7) were applicable in action against a railroad and constitute separate defenses. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

Comparative Negligence Rule

Section embodies comparative negligence law.

- Former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291) embodied law of comparative negligence and consequent diminution of damages. Central of Georgia Ry. v. Rountree, 10 Ga. App. 696, 73 S.E. 1095 (1912).

The doctrine which prevailed in this state, by reason of former Code 1933, §§ 94-703 and 105-603 (see O.C.G.A. §§ 46-8-291 and51-11-7), was more accurately and properly designated as that of comparative negligence, rather than that of contributory negligence. Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936).

Concurrent contributory negligence only reduces recovery.

- Concurrent contributory negligence of plaintiff under former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291) not a bar but only reduced the recovery. Southern Ry. v. Wilbanks, 67 F.2d 424 (5th Cir. 1933), cert. denied, 291 U.S. 678, 54 S. Ct. 530, 78 L. Ed. 1066 (1934).

Former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291) made the contributory negligence of a plaintiff proper to be considered, when pleaded, not in bar, as at common law, but in reduction of damages in proportion to the amount of default attributable to the plaintiff. McCord v. Atlantic Coast Line R.R., 185 F.2d 603 (5th Cir. 1950).

Former Code 1933, §§ 94-703 and 105-603 (see O.C.G.A. §§ 46-8-291 and51-11-7) provided that, when the negligence of both parties was concurrent and contributed to the injury, then the plaintiff shall not, as at common law, be barred entirely, but may recover damages reduced below full compensation for the injury by an amount proportioned to the amount of the default attributable to plaintiff. Atlantic Coast Line R.R. v. Mitchell, 157 F.2d 880 (5th Cir. 1946).

Contributory negligence does not bar recovery by plaintiff unless plaintiff's negligence is equal to or greater than that of defendant. If they are both negligent, but plaintiff's negligence is less than that of defendant, plaintiff may recover, but plaintiff's damages will be diminished by the jury in proportion to the amount of fault attributable to plaintiff. Gross v. Southern Ry., 414 F.2d 292 (5th Cir. 1969).

Former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291) was applied where the negligence of the plaintiff equalled or exceeded that of defendant, and in such cases there can be no recoveries; but if the negligence of the plaintiff was less than that of the defendant, and the plaintiff was otherwise entitled to recover against the defendant, the total amount of damages in dollars and cents should be diminished in proportion to the amount of fault attributable to the plaintiff. Campbell v. Southern Ry., 198 F. Supp. 661 (N.D. Ga. 1961), aff'd, 309 F.2d 569 (5th Cir. 1962).

Contributory negligence of the plaintiff which does not equal, or exceed the negligence of the defendant does not defeat the recovery of damages but diminishes the amount thereof "in proportion to the amount of fault attributable to" the plaintiff. Atlantic Coast Line R.R. v. Key, 196 F.2d 64 (5th Cir. 1952).

The true comparative-negligence rule is that, if a plaintiff and defendant are both guilty of negligence which concurs proximately to bring about an injury to a plaintiff, and if the defendant's negligence is sufficient to predicate an action on, for example, ordinary negligence, and if the plaintiff is negligent, even if plaintiff's negligence amounts to a failure to exercise ordinary care, and the plaintiff's negligence is not equal to or greater than that of the defendant, the plaintiff is still entitled to recover, provided the plaintiff could not have avoided the consequences of the defendant's negligence by the exercise of ordinary care after it was actually discovered or should have been discovered by the exercise of ordinary care. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

The comparative negligence rule is that where there is negligence by both parties which is concurrent and contributes to the injury sued for, a recovery by the plaintiff is not barred, but plaintiff's damages shall be diminished by an amount proportioned to the amount of fault attributable to plaintiff, provided that plaintiff's fault is less than the defendants, and that, by the exercise of ordinary care, plaintiff could not have avoided the consequences of the defendant's negligence after it became apparent or in the exercise of ordinary care should have been discovered by the plaintiff. Rogers v. McKinley, 48 Ga. App. 262, 172 S.E. 662 (1934), later appeal, 52 Ga. 161, 182 S.E. 805 (1935); Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936).

If the negligent acts and conduct of the complainant only proximately contribute to the injury, but in some less degree than the negligence of the defendant, plaintiff can still recover partial damages under the comparative negligence rule, unless plaintiff could have avoided the consequences of defendant's negligence after it had or should have become known. Donaldson v. Central of Ga. Ry., 43 Ga. App. 480, 159 S.E. 738 (1931).

Plaintiff must prove that negligence of defendant preponderated.

- Former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291) meant that where both parties are at fault, and the alleged injury was the fault of both, and if the jury should find from the evidence that the plaintiff, by the exercise of ordinary care and diligence, could not have avoided the alleged injury caused or occasioned by the defendant's negligence, then, though the plaintiff may have been to some extent negligent, the plaintiff would be entitled to damages, but the amount shall be diminished by the jury in proportion to the amount of fault attributable to the plaintiff; but the plaintiff cannot recover if guilty of negligence contributing to the injury, unless it is made to appear that the negligence of the defendant preponderated in causing the injury. Lamb v. McAfee, 18 Ga. App. 584, 90 S.E. 103 (1916), later appeal, 26 Ga. App. 3, 105 S.E. 250 (1920).

Defendant found liable where failed to exercise last clear chance to avoid injury.

- If both plaintiff and defendant are negligent, the latter can be found solely liable for all the damage if defendant had a last clear chance to avoid the injury and did not exercise ordinary care. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

How damages calculated.

- If jury finds the plaintiff was negligent, and that neither plaintiff's negligence nor defendant's negligence was the sole proximate cause of plaintiff's injuries, but that plaintiff's negligence and defendant's negligence combined to cause plaintiff's injuries, and the defendant's negligence was greater than the plaintiff's, then they should find a verdict for the plaintiff in an amount calculated by determining the total amount in which plaintiff has been damaged, and then reducing that amount in proportion to the negligence of the plaintiff compared with that of the defendant. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

Comparative negligence doctrine denies any recovery if plaintiff's negligence equals or exceeds defendant's. Damages are proportionately reduced where the latter's fault exceeds that of the plaintiff. Thus, if each party is 50 percent at fault, there can be no recovery. But should plaintiff's negligence be 49 percent, plaintiff is entitled to recover 51 percent of plaintiff's damages. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

When Plaintiff's Negligence Bars Recovery

Recovery by plaintiff denied for failure to exercise ordinary care.

- Only where injured party fails to exercise ordinary care to escape consequences of negligence is recovery entirely defeated. Weinstein v. Powell, 61 F.2d 411 (5th Cir. 1932).

Where the plaintiff by the exercise of ordinary care could have avoided the consequences to oneself caused by the defendant's negligence, plaintiff is not entitled to recover. Lowe v. Payne, 156 Ga. 312, 118 S.E. 924 (1923).

The plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof shows plaintiff could, by ordinary care, after the negligence of the defendant began or was existing, have avoided the consequences to oneself of that negligence; the law of contributory negligence is applicable only where both parties are at fault, and when, also, the plaintiff could not by ordinary care have avoided the injury which the defendant's negligence produced. Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542 (1938).

Under O.C.G.A. §§ 46-8-291 and51-11-7 there can be no recovery of damages where the injured party has failed to use ordinary care to prevent an injury to oneself, unless the injury be willfully and wantonly inflicted upon the party. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6 (1955). But see Garrett v. NationsBank, 228 Ga. App. 114, 491 S.E.2d 158 (1997).

In an action brought by an employee of a common carrier by railroad against the company, for personal injuries, the employee cannot recover if the employee's injuries were caused by the employee's own carelessness amounting to a failure to exercise ordinary care; or if by the exercise of ordinary care the employee could have avoided the consequences of the defendant's negligence. Louisville & N.R.R. v. Dunn, 21 Ga. App. 379, 94 S.E. 661 (1917).

Under former Civil Code 1910, §§ 2781 and 4426 (see O.C.G.A. §§ 46-8-291 and51-11-7), where a person who was killed by the running of a train could by the exercise of ordinary care for one's own safety have avoided the consequences to oneself of the defendant's negligence after it came into existence and was known to the person or could have been discovered by the exercise of ordinary care, an action for damages against the railroad company on account of negligence will not lie. Central of Ga. Ry. v. Tapley, 145 Ga. 792, 89 S.E. 841 (1916).

Regardless of whether plaintiff's decedent stopped at a stop sign, the decedent violated O.C.G.A. § 40-6-141 and decedent's injuries were caused by decedent's failure to exercise ordinary care for his own safety. Crockett v. Norfolk S. Ry., 95 F. Supp. 2d 1353 (N.D. Ga. 2000), aff'd, 239 F.3d 370, (11th Cir. 2000).

Recovery by plaintiff denied where negligence equal or for failure to exercise ordinary care.

- There were only two exceptions in former Code 1933, §§ 94-703 and 105-603 (see O.C.G.A. §§ 46-8-291 and51-11-7) to the right of recovery by a plaintiff who had been guilty of negligence concurring with that of a defendant to cause an injury; one was that a plaintiff may not recover if the plaintiff could have avoided the negligence of the defendant by the exercise of ordinary care, and the other is that a plaintiff cannot recover if the plaintiff's negligence is equal to or greater than that of the defendant. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

Recovery denied where plaintiff's negligence is proximate cause of injuries.

- Plaintiff cannot recover where plaintiff's negligence is proximate cause of plaintiff's injuries. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

No person can recover damages from a railroad company for injuries to oneself where the same are caused by one's own negligence or where by the exercise of ordinary care one could have avoided the consequences to oneself caused by the company's negligence. Coleman v. Western & A.R.R., 48 Ga. App. 343, 172 S.E. 577 (1933).

Rule of ordinary care extends to negligence discoverable by plaintiff.

- The rule that, in order for the plaintiff to recover plaintiff must have exercised ordinary care to avoid the consequences to oneself caused by the defendant's negligence is not limited to the negligence of the defendant which may have been actually discovered, but extends also to the negligence which might have been discovered by the exercise of ordinary care on the plaintiff's part. Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936).

Last clear chance doctrine applied to plaintiff.

- The failure to exercise ordinary care to escape the consequences of the defendant's negligence which is a bar arises in situations in which the defendant's negligence exists first and is apparent or may readily be known, and the plaintiff, by the exercise of ordinary care, can escape its consequences but does not. It is the doctrine of "the last clear chance" applied to the plaintiff instead of to the defendant. Southern Ry. v. Wilbanks, 67 F.2d 424 (5th Cir. 1933), cert. denied, 291 U.S. 678, 54 S. Ct. 530, 78 L. Ed. 1066 (1934).

No recovery where plaintiff had opportunity to avoid negligence of defendant.

- Where the allegations of petition show that the plaintiff, with knowledge of the prior acts complained of, had full opportunity to avoid and escape the consequences thereof, plaintiff was not entitled to recover though the defendant may have been in some respects negligent. Central of Ga. Ry. v. Roberts, 213 Ga. 135, 97 S.E.2d 149 (1957).

No recovery where victim guilty of reckless conduct.

- Where the evidence shows reckless conduct on the part of the decedent, under former Civil Code 1895, § 2322 (see O.C.G.A. § 46-8-291) the railroad company was not liable in damages for decedent's death, unless it was guilty of wanton or criminal negligence. Hopkins v. Southern Ry., 110 Ga. 85, 35 S.E. 307 (1900).

Jumping from moving train.

- Plaintiff's injuries were solely caused by plaintiff's own decision to jump from a train after helping a passenger on board, and a car attendant's actions did not constitute an inducement to plaintiff to attempt to leave the train while in motion, where the attendant exercised no control over the movement or management of the train, and the attendant specifically advised plaintiff to remain on the train until it stopped at the next station. Giargiari v. National R.R. Passenger Corp., 185 Ga. App. 723, 365 S.E.2d 875 (1988).

Damages reduced to nothing where negligence equal.

- A diminution of the plaintiff's damages in proportion to the amount of default attributable to plaintiff would, where the plaintiff's negligence is equal to the negligence of the defendant, reduce the plaintiff's damage to nothing. Southern Ry. v. Reed, 40 Ga. App. 332, 149 S.E. 582 (1929).

No bar where plaintiff guilty of negligence before duty arose to avoid defendant's negligence.

- The mere fact that the plaintiff might have been guilty of ordinary negligence before the duty arose to discover and avoid the defendant's negligence would not in and of itself preclude a recovery by the plaintiff. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

No bar to recovery where victim in such condition that he is unable to avoid injury.

- Because the duty to avoid negligence does not arise until after the negligence is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence, the doctrine that recovery cannot be had for a homicide if the deceased could by the exercise of ordinary care have avoided the consequences of the defendant's negligence, has no application to a case where the negligence came into existence at a time when the deceased was in such a condition that the deceased could not have done anything to avoid the consequences of the negligence. Central of Georgia Ry. v. Pelfry, 11 Ga. App. 119, 74 S.E. 854 (1912).

Plaintiff's Standard of Care

1. In General

Point at which duty to avoid negligence arises.

- Duty to avoid negligence does not arise until after negligence to be avoided has become apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

Plaintiff's duty before negligence is apparent.

- Failure to exercise ordinary care on the part of the person injured, before the negligence complained of was apparent, or should have been reasonably apprehended, would not preclude a recovery, but under former Civil Code 1895, § 2322 (see O.C.G.A. § 46-8-291) would authorize the jury to diminish the damages in proportion to the fault attributable to the person injured. Western Atl. R.R. v. Ferguson, 113 Ga. 708, 39 S.E. 306, 54 L.R.A. 802 (1901).

Plaintiff's conduct considered in light of surrounding circumstances.

- In deciding whether ordinary care was exercised in a given case, the conduct in question must be considered in light of all the surrounding circumstances as shown by the evidence. Campbell v. Southern Ry., 198 F. Supp. 661 (N.D. Ga. 1961), aff'd, 309 F.2d 569 (5th Cir. 1962).

Care by person in emergency.

- Under former Civil Code 1895, § 2322 (see O.C.G.A. § 46-8-291), the duty of a person for that person's own safety, in an emergency, was not to be measured by the ordinary standard, but that allowance was to be made for the state of that person's emotions. Atlanta, K. & N. Ry. v. Roberts, 116 Ga. 505, 42 S.E. 753 (1902).

Where one is confronted with a sudden emergency, without sufficient time to determine with certainty the best course to pursue, one is not held to the same accuracy of judgment as would be required of a person if the person had time for deliberation. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

Railroad not liable for damages caused by person's own negligence.

- Railroad company is not liable to either grown person or minor for damages to the person caused by the person's own negligence, or where the person could have avoided the consequences of the defendant's negligence by the use of due care. Linder v. Brown, 137 Ga. 352, 73 S.E. 734 (1912).

Contributory negligence of those under 14 years of age.

- Infants under 14 years of age are chargeable with contributory negligence resulting from want of such care as their mental and physical capacity fits them for exercising, and assume risks of those patently obvious and known dangers which they are able to appreciate and avoid. Campbell v. Southern Ry., 198 F. Supp. 661 (N.D. Ga. 1961), aff'd, 309 F.2d 569 (5th Cir. 1962).

2. Specific Examples

Standard of care while crossing ahead at train.

- All that is required of person about to cross ahead of observed railroad car is that the person exercise reasonable care. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

Person is bound, before stepping from a place of safety on side of railroad track, to look for approach of trains and cars, and where such person steps upon the railroad tracks in front of oncoming cars without looking, and the employees of the company on said cars immediately shout and apply the brakes, such operators are in the use of ordinary care for the protection of such pedestrian, and such pedestrian was lacking in due care for the pedestrian's own safety as a matter of law to such an extent as to bar recovery. Southern Ry. v. Waldrup, 76 Ga. App. 356, 45 S.E.2d 775 (1947).

Failure to stop, look, and listen not lack of ordinary care.

- It cannot be said, as a matter of law, that the failure on the part of a person approaching and entering into a railroad crossing, and unaware of the approach of a train, to stop, look, and listen, renders that person guilty of the lack of ordinary care. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

It is not, as a matter of law, negligence proximately causing an injury for a person, injured at a public railroad crossing by an approaching train, to proceed across the railroad track at the crossing without observing the approaching train, although had the person looked the person could have seen the train approaching in time to have avoided the injury. Pollard v. Harris, 51 Ga. App. 898, 181 S.E. 593 (1935).

Duty to use ordinary care in using path across railroad track.

- One using path across railroad track is bound to use ordinary care for one's own safety, and ordinary care in such case is that care which an ordinarily prudent person would use under similar circumstances; the absence of such care defeats recovery where the exercise of such care would have avoided the injury. Southern Ry. v. Waldrup, 76 Ga. App. 356, 45 S.E.2d 775 (1947).

Motorist attempting to cross in front of oncoming streetcar.

- A street railway company is not liable in damages to the plaintiff because of a collision between a streetcar and the plaintiff's automobile, at a crossing, that is brought about solely by the plaintiff's mistaken judgment that plaintiff had ample time to drive plaintiff's automobile across the defendant's railway tracks ahead of the oncoming streetcar. Kirk v. Savannah Elec. & Power Co., 50 Ga. App. 468, 178 S.E. 470 (1935).

Railway not liable where motorist crosses in front of locomotive.

- Where the plaintiff, having previously seen the moving train approaching the crossing, miscalculated the time in which plaintiff could safely cross, and placed oneself on the track immediately in front of the moving locomotive, was caught by the pilot and injured, such injury is directly attributable to the negligence and want of ordinary care on the part of the plaintiff, which bar plaintiff's right of recovery under former Civil Code 1895, § 2322 (see O.C.G.A. § 46-8-291). Southern Ry. v. Blake, 101 Ga. 217, 29 S.E. 288 (1897).

Pedestrian may rely upon custom of streetcar stopping at crossing.

- One about to cross streetcar track at crossing may rely upon stopping of car at that place in accordance with custom, with a stop sign, or rule of the company, and this even though one sees the car approaching. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

No contributory negligence where exercising ordinary care would not have revealed approaching streetcar.

- It is not contributory negligence for plaintiff to attempt to cross streetcar track where plaintiff does not see streetcar approaching, and by the exercise of ordinary care could not have seen it. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

Plaintiff injured crossing tracks where vision obscured may be guilty of negligence.

- Where there is evidence that the plaintiff proceeded across a track at a crossing, in the wake of a train which had just passed, when, at the time, plaintiff's vision along a parallel track upon which a train of the defendant was approaching was obscured by the train which had just passed, and that for this reason plaintiff could see along this track only a short distance, that plaintiff proceeded upon the track on which the approaching train was coming, and was hit by the train and injured, the evidence is sufficient to authorize the inference that the plaintiff was not in the exercise or ordinary care. Central of Ga. Ry. v. Cooley, 44 Ga. App. 118, 160 S.E. 812 (1931).

Motorist driving into cloud of smoke takes chance of hitting object.

- Where plaintiff can see smoke emitted from locomotive that completely obscures highway when plaintiff drives into it, being unable to see what is ahead of plaintiff, and hits a parked truck, plaintiff takes the chance of there being some hidden obstruction or danger within the smoke, and therefore proceeds at plaintiff's peril, and has no right to recover from defendant. Reid v. Southern Ry., 52 Ga. App. 508, 183 S.E. 849 (1936).

Plaintiff consents to injuries where he drives faster than power of headlights.

- Where it appears that, after voluntarily deflecting the headlights of plaintiff's automobile so that plaintiff could not see an unlighted railroad passenger car standing directly in front of plaintiff on a public highway until plaintiff was within ten or 15 feet of it, the plaintiff, driving at a speed of 30 miles an hour, with plaintiff's brakes in good working order, could not avoid striking said car with such force as to wreck plaintiff's automobile and seriously injure oneself, in a legal sense the plaintiff was in the attitude of consenting to the injuries alleged. Baker v. Atlantic Coast Line R.R., 52 Ga. App. 624, 184 S.E. 381 (1936).

Other Defenses

"Consent" defined.

- Under former Civil Code 1895, § 2322 (see O.C.G.A. § 46-8-291), one who knowingly and voluntarily took a risk of injury to one's person and property, the danger of which is so obvious that the act of taking such risk, in and of itself, amounted to a failure to exercise ordinary care and diligence for one's own safety and that of one's property, cannot hold another liable for damages from injuries thus occasioned. Southern Ry. v. Hogan, 131 Ga. 157, 62 S.E. 64 (1908); Georgia R.R. & Banking Co. v. Greer, 7 Ga. App. 292, 66 S.E. 961 (1910).

Section a defense where horse improperly loaded on car.

- Former Civil Code 1895, § 2322 (see O.C.G.A. § 46-8-291) was a defense to an action by the owner of a horse that was injured because of the improper manner used by the plaintiff in loading the animal on a car. Southern Ry. v. Bivings, 3 Ga. App. 552, 60 S.E. 287 (1908); Coweta County v. Central of Ga. Ry., 4 Ga. App. 94, 60 S.E. 1018 (1908).

Section a defense where person alights from train knowing it will not stop.

- A person consented under former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291) to any injury the person sustained when attempting to get off from a moving train at a station at which the person knew that the train would not stop. Georgia R.R. & Banking Co. v. Greer, 7 Ga. App. 292, 66 S.E. 691 (1910).

Section a defense where passenger injured boarding moving train.

- Where a passenger waited until a train began to move, and was injured in an attempt to get on board by seizing the railing of the car, under former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291), the passenger cannot recover damages on the ground that the railroad company was negligent in allowing trucks to be placed near the track. Southern Ry. v. Nichols, 135 Ga. 11, 68 S.E. 789 (1910).

Section not defense where carrier fails to keep train under control.

- Former Civil Code 1895, § 2322 (see O.C.G.A. § 46-8-291) was no defense if the company, after omitting to warn the traveler of the impending danger, followed up its negligence by a total failure to observe the additional duty imposed upon it of having its train under perfect control, and itself inflicted the injuries by negligently running the traveler down with its locomotive. Comer v. Barfield, 102 Ga. 485, 31 S.E. 89 (1897).

Defenses where cow killed by train.

- Where it was proved that a cow was killed by a railroad train, former Code 1882, § 3034 (see O.C.G.A. § 46-8-291) imposed on the company the burden of showing that it was in the exercise of all ordinary and reasonable care and diligence, or that the damage was caused solely by the negligence of the owner of the cow, or to diminish damages, that both were at fault. Georgia R.R. v. Bird, 76 Ga. 13 (1885).

Burden of proof of establishing defense on defendant.

- In order to sustain the defense, the burden of proof is upon the defendant to make it affirmatively appear that the injury is the result of the negligence of the plaintiff's husband. Central of Ga. Ry. v. North, 129 Ga. 106, 58 S.E. 647 (1907).

Mere presence of safety precautions does not relieve railroad of liability.

- Mere presence of safety precautions such as automatic signalling devices does not render railroad free from negligence as a matter of law or relieve it from adopting such other measures as public safety and common prudence dictate; this is especially true when the evidence shows that a train was running at an undue and highly dangerous rate of speed over a much frequented crossing located in a city or town. Seaboard Coast Line R.R. v. West, 155 Ga. App. 391, 271 S.E.2d 36 (1980).

Trespassers

Duty to persons allowed to walk on track.

- The use of the track by pedestrians with the company's knowledge does not bind it to the exercise of extraordinary care and diligence to protect them. If such use amounts to a license, it must be on condition that the pedestrian shall exercise ordinary care and diligence to avoid injury. White v. Central R.R. & Banking Co., 83 Ga. 595, 10 S.E. 273 (1889); Central of Ga. Ry. v. Pelfry, 11 Ga. App. 119, 74 S.E. 854 (1912).

No liability to trespasser where trespasser has not exercised ordinary care.

- A lack of ordinary care on the part of a railway company in failing to anticipate presence of a trespasser does not render it liable where the trespasser was personally guilty of a lack of ordinary care in exposing oneself to such peril, but might render the company liable if the presence of the trespasser on the track at such a time and place was free from a lack of ordinary care on the trespasser's part. Southern Ry. v. Kelley, 52 Ga. App. 137, 182 S.E. 631 (1935).

Railroad may be liable where it has duty to anticipate presence.

- If the presence of a trespasser on the track at the time and place of the injury is brought about by peculiar facts and circumstances which relieve the trespasser from the guilt of a lack of ordinary care in thus exposing oneself, the company might be liable for a mere lack of ordinary care on its part in failing to anticipate the trespasser's presence at a time when and a place where it was charged with such duty, and in thereafter failing to take such proper precautions for the trespasser's safety as might seem reasonably necessary. Southern Ry. v. Kelley, 52 Ga. App. 137, 182 S.E. 631 (1935).

Railroad bound to anticipate presence of people using known passageway.

- When persons habitually, with the knowledge but without the disapproval of the railroad, use private passageway crossing, the railroad's employees, who are in charge of its train, and who are aware of the custom, are bound to anticipate that persons may be upon the tracks at such point and have a duty to exercise ordinary care and diligence to prevent injury to such persons. Campbell v. Southern Ry., 198 F. Supp. 661 (N.D. Ga. 1961), aff'd, 309 F.2d 569 (5th Cir. 1962).

Recovery by Guests

Recovery allowed by guest of driver of team.

- If the negligence of the defendant and the driver of a mule hitched to a buggy concurred in causing the injuries, the plaintiff could recover, provided plaintiff could not by the exercise of ordinary care have avoided being injured; and plaintiff's damages should not be diminished on account of the driver's negligence, even if such negligence amounted to the want of ordinary care on the driver's part, as the negligence of the driver could not be imputed to the plaintiff a guest of the driver. Central of Ga. Ry. v. Reid, 23 Ga. App. 694, 99 S.E. 235 (1919).

Recovery allowed by guest in automobile.

- A person riding in an automobile as the guest of the driver is not, as a matter of law, guilty of negligence barring a recovery against the railroad company for an injury received by that person from the automobile in which the person was riding being run into by a train of the defendant at a public crossing, in failing to observe the approaching train when it is close upon the person, although the view down the track for a long distance in the direction from which the train approached is in full and unobstructed view of a person approaching the crossing. Atlanta & W.P.R.R. v. McCord, 54 Ga. App. 811, 189 S.E. 403 (1936).

Jury Questions

Questions as to diligence and negligence are jury questions.

- Questions as to diligence and negligence, including contributory negligence, and what negligence constitutes the proximate cause of the injury are questions peculiarly for the jury, except where the solution of the question appears to be palpably clear, plain, and indisputable. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932); Iler v. Seaboard Air Line R.R., 214 F.2d 385 (5th Cir. 1954).

Questions of negligence, proximate cause and failure to exercise due care in avoiding the consequences of another's negligence, or where the conduct charged or relied on as negligence is such that different minds might reasonably draw different conclusions therefrom, are for the trier of facts. Campbell v. Southern Ry., 198 F. Supp. 661 (N.D. Ga. 1961), aff'd, 309 F.2d 569 (5th Cir. 1962).

Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them except in plain and indisputable cases. Wall v. Southern Ry., 196 Ga. App. 483, 396 S.E.2d 266 (1990).

Question of comparative negligence is exclusively jury question.

- Question of comparative negligence is exclusively a jury question and not a question that may be determined by the court as a matter of law. Southern Ry. v. Haynes, 293 F.2d 291 (5th Cir. 1961).

Jury does not determine negligence previously decided by statute or ordinance.

- The question as to what acts do or do not constitute negligence is for determination by the jury, except where a particular act is declared to be negligence, either by statute or by a valid municipal ordinance. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

Jury decides whether ordinary care exercised.

- Where, in an action for personal injury, the case turns upon the question whether the party injured could, by the exercise of ordinary care, have avoided the injury, and the evidence does not show such conduct on that party's part as to amount to negligence per se, the question as to the exercise of ordinary care is for the jury. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

Jury decides whether train operated at safe speed.

- Whether train was being operated at a speed so as to avoid doing injury to persons on the crossing and whether if the emergency brakes had been applied earlier those persons would not have been injured presented questions of negligence which were properly within the province of the jury. Seaboard Coast Line R.R. v. West, 155 Ga. App. 391, 271 S.E.2d 36 (1980).

Jury decides whether railroad bound to look out for presence of trespasser.

- Whether or not the locality, the time, and the circumstances of injury to one using the right of way of a railroad, and the known habits and frequency of the public in using it, create such a condition as will charge the servants of the company operating the locomotive and the cars with a special duty of looking out for the presence of a trespasser at the time and place of the injury, is a question for the trier of facts, in the light of all the evidence introduced. Campbell v. Southern Ry., 198 F. Supp. 661 (N.D. Ga. 1961), aff'd, 309 F.2d 569 (5th Cir. 1962).

Right of jury to consider youth of plaintiff.

- Under former Code 1882, § 3034 (see O.C.G.A. § 46-8-291) the jury had the right to weigh all the facts, to consider the youth of the injured party, the circumstances surrounding the injured party and urging the injured party's return to the injured party's home with the injured party's young companions on the train where the injury occurred, the short time allowed for decision and action, and the invitation given by an employee of the road, dressed in its uniform, and who, though humble, was in this action the representative of the company, and one for whose action it was responsible. Western & A.R.R. v. Wilson, 71 Ga. 22 (1883).

Instructions

1. In General

Charging section in its entirety not error.

- Charge of former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291) in its entirety was not error as being an incorrect statement of law. Southern Ry. v. Lee, 59 Ga. App. 316, 200 S.E. 569 (1938).

Charge of section harmless even where not justified by evidence.

- While there was no evidence whatsoever that an injured person consented to the tort, it is not reversible error that the court charged, in substance, the entire first sentence of former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291), referring to "negligence" and "consent" on the part of the person injured, the part of the charge as to negligence being applicable. The giving of the inapplicable part as to consent was not prejudicial. Sarman v. Seaboard Airline Ry., 33 Ga. App. 315, 125 S.E. 891 (1924).

Duty to charge section on request.

- Where the evidence authorized the inference that the plaintiff was negligent, it was error prejudicial to the defendants not to comply with a written request to charge in effect the rule of former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291). Southern Ry. v. Bottoms, 35 Ga. App. 804, 134 S.E. 824 (1926).

Failure to charge section in negligent homicide action.

- Failure to charge former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291) was error in action for negligent homicide. Central of Ga. Ry. v. Prior, 142 Ga. 536, 83 S.E. 117 (1914).

Section properly charged in action arising from collision of automobile and train.

- Former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291) was properly charged in an action against a railroad company for damages from injuries to an automobile and to the person who was operating it, where it appeared that the injury occurred on a public crossing, and that at the time of the injury the plaintiff was driving plaintiff's car in violation of a statute in regard to running automobiles over railroad crossings, and that the defendant was violating a city ordinance in regard to running trains over public crossings within the city. Louisville & N.R.R. v. Stafford, 146 Ga. 206, 91 S.E. 29 (1916).

No error in failing to charge express words of section where jury fully instructed.

- Where the court has instructed the jury that the plaintiff could not recover if the decedent could have avoided death by the exercise of ordinary care or if decedent's negligence was the proximate cause of death, and having also fully instructed the jury upon the law of comparative negligence, there was no error, especially in the absence of a written request, in the failure of the court to give in charge the express terms of former Civil Code 1910, § 2781 (see O.C.G.A. § 46-8-291). Southern Ry. v. Weatherby, 20 Ga. App. 399, 93 S.E. 31 (1917); Georgia R.R. & Banking Co. v. Wallis, 29 Ga. App. 706, 116 S.E. 883 (1923).

Not charging comparative negligence not error where defendant fails to raise issue.

- Where the issue of avoidance or of comparative negligence is not raised by the defendant's answer or plea there is no error in failing to charge on these items, absent a timely written request. Davis v. Hammock, 123 Ga. App. 33, 179 S.E.2d 283 (1970).

Amount of evidence making comparative negligence charge appropriate.

- The amount of evidence which makes a comparative negligence charge appropriate, and thus rendered it error to refuse a timely request, need not be great, but it was sufficient if there was slight evidence from which inferences of negligence can be drawn by the jury. Davis v. Hammock, 123 Ga. App. 33, 179 S.E.2d 283 (1970).

Applicability of apportionment rule.

- Apportionment rule is applicable where plaintiff could not have avoided consequences of defendant's negligence by ordinary care. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

2. Charge of this Section and § 51-11-7 Section 51-11-7 should be charged along with comparative negligence.

- Even where law of comparative negligence under former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291) was given in charge, rule of law enunciated in former Code 1933, § 105-603 (see O.C.G.A. § 51-11-7) should be charged. Pollard v. Watkins, 51 Ga. App. 762, 181 S.E. 798 (1935).

This section and

§ 51-11-7 to be charged separately. - The different rules contained in this section and § 51-11-7 should not be so stated as to mislead the jury into believing that they would be authorized to find that the plaintiff, in an action for personal injuries against a railroad company, can recover when, by the use of ordinary care, plaintiff could have avoided the consequences to oneself caused by the defendant's negligence. Wrightsville & T.R.R. v. Gornto, 129 Ga. 204, 58 S.E. 769 (1907).

Not error to charge this section and § 51-11-7. - It was not error for court to charge in immediate connection with each other former Code 1933, §§ 94-703 and 105-603 (see O.C.G.A. §§ 46-8-291 and51-11-7). Each was a separate and distinct proposition of law, and neither one modified or qualified the other. Southern Ry. v. Lee, 59 Ga. App. 316, 200 S.E. 569 (1938).

Failure to charge

§ 51-11-7 not error where qualification of diminished damages unnecessary. - Where the court, in stating to the jury a number of contingencies in which the plaintiff could not recover, instructs the jury that if the negligence of the plaintiff was equal to or greater than that of the defendant the plaintiff could not recover, the charge is not error for the reason that the court failed to qualify the diminished damages rule by the provisions of former Code 1933, § 105-603 (see O.C.G.A. § 51-11-7), because if the plaintiff's negligence was not merely less than, but equal to or greater than, that of the defendant, the defendant would not be liable, and the qualification was unnecessary. Berry v. Jowers, 59 Ga. App. 24, 200 S.E. 195 (1938).

Charge held not to be confusing blend of this section and § 51-11-7. - In an action for damages alleged to have been occasioned by the negligence of a defendant railroad company, a charge "that the plaintiff must further show that his injury, if any, was not caused by his own negligence and that he could not have avoided the injury by the exercise of ordinary care and diligence," was not open to the criticism that it confused and blended former Civil Code 1895, §§ 2322 and 3830 (see O.C.G.A. §§ 46-8-291 and51-11-7) to the prejudice of the defendant. Southern Ry. v. Wallis, 133 Ga. 553, 66 S.E. 370, 30 L.R.A. (n.s.) 401, 18 Ann. Cas. 67 (1909).

3. Specific Instructions

Charge that plaintiff could have avoided injury by exercise of ordinary care.

- In the trial of an action wherein the plaintiff seeks recovery of damages for injuries alleged to be due to the negligence of a railroad company at a public crossing, where the evidence authorizes a finding that the plaintiff could have avoided the negligence of the railroad company by the exercise of ordinary care, it is error for the court to refuse to give a charge on request that if the plaintiff, by the exercise of ordinary care, could have avoided the consequences to oneself caused by defendant's negligence, plaintiff would not be entitled to recover. Atlantic Coast Line R.R. v. Green, 84 Ga. App. 674, 67 S.E.2d 184 (1951).

Charging no recovery where plaintiff's negligence equal to or greater than defendant's.

- It is proper for court to instruct jury that plaintiff cannot recover if his negligence is equal to or greater than defendant's negligence. Yellow Cab Co. v. Adams, 71 Ga. App. 404, 31 S.E.2d 195 (1944).

Where the judge charged the law of contributory negligence and diminution of damages substantially as set out in former Code 1933, § 94-703 (see O.C.G.A. § 46-8-291), it furnishes no ground for a new trial that the court failed, in connection with such charge, to also instruct the jury that if the parties were equally negligent there could be no recovery. Southern Ry. v. Maddox, 63 Ga. App. 508, 11 S.E.2d 501 (1940).

Charge on diminishing damages proper.

- A charge that, if the plaintiff and the defendant are both at fault, the plaintiff may nevertheless recover, but the damage should be diminished in proportion to the amount of default attributable to the plaintiff, states a correct rule of law and is not subject to the objection that it contains as instruction to the jury that the plaintiff can recover, if plaintiff's negligence is equal to the negligence of the defendant. Southern Ry. v. Reed, 40 Ga. App. 332, 149 S.E. 582 (1929).

The instruction: "If you find that the deceased and the defendant were both negligent, and then negligence of the deceased was equal to or greater than that of the defendant, the plaintiff would not be entitled to recover. If you should find that both the deceased and the defendant were negligent, but that the negligence of the defendant was greater than that of the deceased, then the plaintiff would be entitled to recover, if otherwise entitled to recover under the rules I have given you, but in such event you would reduce the amount of the recovery in proportion to the negligence of the deceased, if she was guilty of such negligence," is not reversible error. Georgia R.R. & Banking Co. v. Farmer, 45 Ga. App. 130, 164 S.E. 71 (1932).

Error to charge negligence before duty to avoid negligence arises.

- A court errs in charging the jury that, under the comparative-negligence rule and doctrine, the plaintiff would be barred from recovery if the plaintiff was guilty of a failure to exercise ordinary care before plaintiff's duty to discover and avoid the negligence of the defendant arose. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

Charging "avoidance of consequences" and "apportionment of damages" together.

- It is error to charge "avoidance of consequences" rule and in immediate connection therewith "apportionment of damages" rule, in such manner as to qualify the former by the latter, and without making the proper explanation as to the class of cases to which this latter charge is applicable. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

Charging plaintiff's negligence less than failure to exercise ordinary care.

- Where court instructed that, in order for the plaintiff to be entitled to a reduced recovery in the event the plaintiff and defendant both were negligent, the jury must find that the plaintiff's negligence was "less than failure to exercise ordinary care," the instruction was improper. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

Error to charge recovery where plaintiff's negligence greater than defendant's.

- It is error to charge that plaintiff can recover if both plaintiff and the defendant were negligent although plaintiff's negligence exceeded that of defendant. Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936).

Error to charge plaintiff's negligence bars recovery in car collision.

- In an action by a traveler upon a highway, against a railway company, for damages resulting from a collision between a car of the company and the vehicle in which the traveler was riding, it is error to charge the jury that "the plaintiff's contributory negligence in such a case defeats recovery, and your verdict must be for the defendant." Thomas v. Gainesville & D.E. Ry., 124 Ga. 748, 52 S.E. 801 (1906); Savannah Elec. Co. v. Crawford, 130 Ga. 421, 60 S.E. 1056 (1908).

Comparative negligence charge does not exclude defense that plaintiff's negligence greater.

- Where a trial judge charged the jury in substance that where both parties were negligent, but the plaintiff could not have avoided injury by the exercise of ordinary care, and the defendant's was greater than that of the plaintiff, that the rule of comparative negligence and consequent diminution of damages was applicable, this instruction did not exclude the defense that the plaintiff's injury was brought about by plaintiff's own failure to exercise ordinary care. Atlantic Coast Line R.R. v. Anderson, 35 Ga. App. 292, 133 S.E. 63 (1926).

RESEARCH REFERENCES

Am. Jur. 2d.

- 65 Am. Jur. 2d, Railroads, §§ 342 et seq., 393, 394 et seq.

12 Am. Jur. Pleading and Practice Forms, Fires, § 2.

C.J.S.

- 74 C.J.S., Railroads, §§ 851, 853, 896, 897 et seq., 971 et seq., 1040 et seq., 1078, 1207 et seq., 1269.

ALR.

- Liability for death of, or injury to, soldier in service of government, by negligently constructed, maintained, or operated railroad, 11 A.L.R. 1443; 13 A.L.R. 1028.

Liability of master for damage to person or property due to servant's smoking, 13 A.L.R. 997; 31 A.L.R. 294.

Liability of master for injury to child whom servant permits to ride on wagon or truck, 24 A.L.R. 670.

Intoxication as affecting contributory negligence of one killed or injured at a railroad crossing, 36 A.L.R. 336.

Liability of carrier for injuries from falling articles of freight, 40 A.L.R. 501.

Running past stop signal as wanton or willful misconduct rendering railroad company liable for injury to trespasser, 41 A.L.R. 1354.

Validity and construction, as regards buildings not on right of way, of contract relieving railroad from liability for destruction of buildings, 48 A.L.R. 1003; 51 A.L.R. 638.

Infrequent use of crossing by railroad company as affecting its duty or liability to traveler at crossing, 52 A.L.R. 751.

Liability of master for injury to one whom servant, in violation of instructions, permits to ride on vehicle, 62 A.L.R. 1167; 74 A.L.R. 163.

Liability of railroad company for acts of employees in ejecting trespassers from train, 72 A.L.R. 536.

Personal care required at railroad crossing of one riding in automobile driven by another as affecting his right to recover against third persons, 90 A.L.R. 984.

Liability for collision between streetcar and vehicle driven ahead of or toward it along or close to the track, 102 A.L.R. 716.

Statute abolishing or modifying contributory negligence rule in certain class of cases or situations, as denial of equal protection of the laws, 142 A.L.R. 631.

What conduct on part of railroad, in connection with crossing accident, amounts to wantonness, willfulness, or the like, precluding defense of contributory negligence, 151 A.L.R. 9.

Standing railroad car or streetcar and appliances as attractive nuisance, 152 A.L.R. 1263.

Release or contract after injury as affected by provision of Federal Employers' Liability Act invalidating contract, rule, or device to exempt carrier from liability, 166 A.L.R. 648.

Construction and effect of liability exemption or indemnity clause in spur track agreement, 20 A.L.R.2d 711.

Failure of occupants of motor vehicle stalled on railroad crossing to get out and move to place of safety as contributory negligence, 21 A.L.R.2d 742.

Intoxication of person injured or killed as affecting applicability of last clear chance doctrine, 26 A.L.R.2d 308.

Liability of railroad to adult pedestrian attempting to pass over, under, or between cars obstructing crossing, 27 A.L.R.2d 369.

Railroad's duty to children walking longitudinally along railroad tracks or right of way, 31 A.L.R.2d 789.

Attempt to board moving car or train as contributory negligence or assumption of risk, 31 A.L.R.2d 931.

Railroad's liability for injury or damage from collision of road vehicle with train or car at place other than crossing, 44 A.L.R.2d 680.

Contributory negligence of adult struck by train while walking or standing beside railroad track, 63 A.L.R.2d 1226.

Railroad company's liability for injury or death of pedestrian due to condition of surface of crossing, 64 A.L.R.2d 1199.

Duty and standard of care, with respect to contributory negligence, of person with physical handicap, such as impaired vision or hearing, approaching railroad crossing, 65 A.L.R.2d 703.

Failure of signaling device at crossing to operate, as affecting railroad company's liability, 90 A.L.R.2d 350.

Comparative negligence rule where misconduct of three or more persons is involved, 8 A.L.R.3d 722.

Railroad's liability for injury to or death of child on moving train other than as paying or proper passenger, 35 A.L.R.3d 9.

Modern development of comparative negligence doctrine having applicability to negligence actions generally, 78 A.L.R.3d 339.

Application of res ipsa loquitur doctrine to accidents incurred by passenger while boarding or alighting from a carrier, 93 A.L.R.3d 776.

Modern trends as to contributory negligence of children, 32 A.L.R.4th 56.

Applicability of comparative negligence principles to intentional torts, 18 A.L.R.5th 525.

Applicability of comparative negligence doctrine to actions based on negligent misrepresentation, 22 A.L.R.5th 464.

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