Louisville & Nashville Railroad v. Stafford

dissenting. The plaintiff was violating a criminal statute at the .time of the injury received by him, and his violation of the statute was the efficient cause of the injury. The greater weight of authority is against his right to recover under this state of facts, although the defendant may have been guilty of violating the statute in reference to crossings.

1. Error is assigned on a refusal to charge the jury thus: “If you find from the evidence in this case that the plaintiff did not have his automobile under control, or was operating it at a rate of speed greater than six miles per hour, at the time he approached the railroad crossing, then I charge you that in either event he would not be in the exercise of ordinary care for his safety, and would not be entitled to recover in this case, and your verdict would be for the defendant.” A person can not recover •damages from a railroad company for injury done to himself or his property: (a) when the injury is done by his consent or is caused by his own negligence (Civil Code, § 2781); (b) where •after the negligence of the railroad company commenced and was apparent, or the circumstances were such that an ordinarily pru*209dent person would have reason to apprehend its existence, the plaintiff by the exercise of ordinary care could have avoided the consequences to himself of the defendant’s negligence. Civil Code, § 4426; W. & A. R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802); Williams v. Southern Ry. Co., 126 Ga. 710 (55 S. E. 948). Except as just indicated, the plaintiff can recover for injury done by the negligence of the railroad company, notwithstanding his own negligence, in some degree less than that of the defendant, may have contributed to cause the injury; in which case the plaintiff’s negligence goes merely in reduction of damages. Civil Code, §§ 2781, 4426; Americus &c. R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105). The request to charge does not properly apply these principles to the facts of the case. The railroad company might be negligent per se in violating the city ordinance and the statute in regard to running trains over public crossings, and the plaintiff might be negligent per se in violating the statute in regard to running automobiles while approaching and crossing railroad-tracks, but it would not necessarily follow that the negligence of the plaintiff would be the proximate cause of the injury, or that it would be as great as that of the defendant, or that the plaintiff by the exercise of ordinary care could have avoided the consequence of the defendant’s negligence after it commenced or became apparent, or the circumstances would have afforded reason to apprehend its existence. The question of negligence and the degree of negligence of the respective parties would be for the jury under the particular- facts. The railroad company could be guilty of negligence per se, under the city ordinance, in failing to toll the bell and in running its train over the crossing at a speed slightly over five miles per hour; but the jury could say that it would be guilty of a greater degree of negligence by failing to toll the bell, and in running the train over the crossing at twenty-five or thirty miles per hour. And the plaintiff would be guilty of negligence per se in approaching the crossing at a greater rate of speed than the statute, prescribed, but the degree of his negligence would in all cases depend on the circumstances. If there was no train in the vicinity, no danger from disobeying the statute would exist. If not otherwise negligent, his negligence would consist in disobeying the statute. As the circumstances might enhance the danger his negligence would increase; but whether it should bar a *210recovery under the circumstances must be left to the jury. So also the-time when the negligence of the defendant came into existence and was apparent or should have been apprehended, and whether after it became so the plaintiff by the exercise of ordinary care could have avoided the consequences thereof to himself, were questions for the jury. The evidence reported in the statement of facts, concerning the circumstances in which the injury was committed, was not sufficient, under the application of the foregoing principles, to take the ease from the jury. As the requested charge, if given, would have invaded the province of the jury, it was properly refused.

2. The evidence was sufficient to support the verdict.

Judgment affirmed.