Berry v. Jowers

Sutton, J., dissenting.

While I prepared the opinion for the court in this case, I do not agree to the rulings of the majority of the court as contained in the third and fourth divisions of the opinion. I think the charge there dealt with was reversible error as against the defendant and deprived him of one of his defenses. The charge dealt with in the third division of the opinion amounted to instructing the jury that if the plaintiff was guilty of some negligence, if less than ordinary negligence, and the defendant was guilty of negligence proximately causing the injury, she could recover, without telling the jury that if the plaintiff by the exercise of ordinary care could have prevented the injury she could not recover. In other words, the court gave in substance the law as contained in Code, § 94-703, without qualifying it by the law as contained in Code, § 105-603; that is, he failed to instruct the jury in this connection that if the plaintiff by the exercise of ordinary care could have prevented the injury she could not recover. This has been held to be reversible error many times. Americus &c. R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105); Macon, Dublin &c. R. Co. v. Moore, 99 Ga. 229 (3) (25 S. E. 460); Southern Railway Co. v. Watson, 104 Ga. 243 (30 S. E. 818); Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802); Savannah, Florida &c. Ry. Co. v. Hatcher, 118 Ga. 273 (45 S. E. *37239); Columbus Railroad Co. v. Peddy, 120 Ga. 589 (48 S. E. 149); Macon Ry. &c. Co. v. Streyer, 123 Ga. 279 (51 S. E. 342); Southern Railway Co. v. Gore, 128 Ga. 627 (58 S. E. 180). This charge was calculated to have caused the jury to believe that where the plaintiff was guilty of some negligence, and where the defendant was guilty of negligence proximately causing the injury, the plaintiff could recover, although by the exercise of ordinary care she could have prevented the injury to herself. Not only was the duty on the plaintiff to exercise ordinary care, but the duty was on her to exercise ordinary care to prevent the injury to herself, and if, in the exercise of ordinary care, she could have prevented the-injury, then she could not recover, and the jury should have been so instructed. For the same reason I dissent from the ruling made in the fourth division of the opinion.