1. The allegations of the petition do not affirmatively show that the person killed by the defendant's train was not in the exercise of ordinary care for his own safety. King Hardware Company v. Ennis, 39 Ga. App. 355, 365 (147 S.E. 119).
2. In special ground 2, the defendant movant contends that the court erred in charging the jury as follows: "Now, I will say in the beginning that the plaintiff in all civil actions coming into court and setting up that he has been damaged has the burden resting upon him primarily to make out his case, that is, prove and establish the allegations made in his petition, where material, to the satisfaction of the jury by preponderance of the testimony, and if he fails to do that, the verdict and finding of the jury should be in favor of the defendant in the case; the underlying principle being that the verdict and finding of the jury in any civil case shall be in favor of that party litigant with whom the preponderance of the evidence finally rests." The movant avers that such charge was erroneous and injurious to it because: (a) it was not sound as an abstract principle of law; (b) it was confusing to the jury; (c) it was misleading to the jury; (d) "it was also erroneous for the reason that under said charge as given the jury was directed to find a verdict in favor of that party litigant with whom it found the preponderance of the evidence finally rested, regardless of any defense the defendant may have offered in the trial of the said cause." Held: *Page 850 The excerpt excepted to was not reversible error for any of the reasons assigned.
3. In special ground 3, the defendant contends that the court erred in charging the jury as follows: "If the company had been guilty of some negligence towards the complainant, and if he also, in the opinion of the jury, had been guilty of negligence, and negligence which would not amount to a lack of ordinary care on his part, then he might recover, but the jury must fix the proportion according to the negligence of the parties. If the company and the plaintiff were equally at fault, there could be no recovery." Said charge "was erroneous in that it failed to state correctly the law of comparative negligence, in that said charge failed to state that, if the negligence of the deceased was greater than that of the defendant, there could be no recovery because: (a) it was not sound as an abstract principle of law; (b) it was confusing to the jury; (c) it was misleading to the jury." Subsequently to the excerpt quoted in this headnote, the judge, in charging on comparable negligence, stated: "In addition to what I have already given you, gentlemen, I will charge you that, if you find that both the son of the plaintiff and the defendant were both negligent, then I charge you that, if the negligence of the defendant was greater than that of the plaintiff's son, the plaintiff would be entitled to recover, but you would be authorized to reduce the amount of recovery in proportion to the degree of negligence of the plaintiff's son." Held: The excerpt here excepted to was not reversible error for any of the reasons assigned.
4. The evidence authorized the verdict.
DECIDED MAY 20, 1946. 1. The rulings announced in headnotes 2, 3, and 4 do not require elaboration.
2. As to special ground 1, the petition alleges: "7. Your petitioner alleges that the said road upon which her said son was so driving before same intersected with the Baker road was for a distance of some 600 feet west of the intersection with said Baker Road perfectly straight and within 40 feet of the roadbed of the said defendant company and in full view of the agents, servants, and employees of the defendant company's train, which was approaching him from his rear and traveling east, and that said road upon which her said son was driving while intersecting with the public road known as the Baker Road did not cross said public road, but intersected with the same at right angles, and that the said truck so being driven by petitioner's son was in full view of the employees, *Page 851 agents, and servants of the defendant company operating its said train, which was approaching from the rear of the truck that was being so driven by petitioner's son. . . 11. Petitioner further alleges that, although the truck being driven by her son was in full open view of the servants and employees of defendant company before it reached the Baker Road and after the turn in toward the road crossing of defendant company, . . the said servants, agents, and employees so operating said train failed to blow any whistle at the blow post approaching said crossing and failed to blow any signal or warning of any kind of the approach of said train to the said crossing; no whistle having been blown nor the tolling of its bell, said train approaching ran onto and over said crossing without the slightest warning of its approach thereto." Thereafter the plaintiff, in specifying the alleged acts of negligence in paragraph 14, states in subparagraph (d) thereof that, "the engineer in charge of said company's train was in full view of the truck operated by her said son after same turned to the left at the intersection of the Baker Road while same was being driven a distance of 65 feet at the speed of from 4 to 6 miles per hour, failed to sound any warning or distress signal by which the son of your petitioner could be notified of the approach of said train and bring the truck to a stop before reaching said railroad crossing;" and the plaintiff contends that this shows that "the deceased was not in the exercise of ordinary care for his own safety." There was no demurrer to the petition, either general or special; and considering the context of the petition, the inaccurate expression, "the engineer in charge of said company's train was in full view of the truck operated by her said son after same turned to the left," could not mean what is literally stated, "that the engineer was in full view of the truck," and hence the truck saw or could have seen the approach of the train. It necessarily had to mean either that the train was in full view of the deceased who was riding in the truck, or that the engineer was in a place where he had a full view of the truck; and when the petition as a whole and all of its related parts are considered, it seems to us that the only reasonable construction is the latter one, that the engineer was in a place where he had a full view of the truck, and that it was so understood by the jury. In this view of the petition, it does not affirmatively allege that the deceased was not in the exercise of ordinary care for his own safety; *Page 852 and upon a review of the evidence, it does not demand such a finding. This ground, therefore, does not disclose reversible error.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.