2021 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

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.)

- 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).

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

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.

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

- 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.