(After stating the facts.)
1. Several grounds of the motion for a new trial in this case embraced lengthy extracts from the court’s charge, which contained a statement of the respective contentions of the plaintiff and defendant; and the complaint made in the grounds of the motion referred to is that those portions of the charge were argumentative and presented with too much stress and detail the contentions of the plaintiff, and ignored and minimized the contentions of the defendant. But upon a reading of the entire charge, it will appear that the judge fairly stated the contentions of each side. While it is undoubtedly true that the contentions of the plaintiff were stated more at length than those of the defendant, it can not be inferred from this fact that undue stress was. laid upon or undue prominence given to the contentions of the former. In the first place, the contentions, so far as appear from the pleadings of the plaintiff, are set forth fully and distinctly in his petition, properly paragraphed, and the defendant contented itself, as it had a right to do, with a bare denial of the allegations in the petition. If the plaintiff’s case requires a full, definite, and affirmative allegation of certain facts, and the defense to the cause of action as stated rests upon a. mere denial of the allegations in the petition, and the trial judge sums up the contentions of both parties by a fair statement of the material allegations in the petition, and then states that these allegations are denied by the defendant, how can it be said that he has failed to state the contentions of either party? But in the case at bar the judge, after setting forth in his instructions to the
Nor were the portions of the charge' above referred to open to •the criticism that they were argumentative, and contained expressions of opinion by the court as to the evidence upon any of the issues involved in the case.
Complaint is also made that the court erred in charging the jury as follows: “On the other hand, the defendant, the Macon, Dublin & Savannah Eailroad Company, contends that the plaintiff was in .the employment of the company, and was injured by an engine on the track of the defendant company.” The assignment of error .upon this charge is that “said charge is erroneous, because it does not state contentions of the defendant, but on .the contrary states contention of the plaintiff, and because it was calculated to mislead the jury.” It is fair to say of this portion of the court’s charge, that it seems to have been a mere inadvertence; certainly it is not such a material, error as to authorize the grant of a new trial. It could not have misled the jury in respect to any issue involved;
2. The court gave the following instructions to the jury.: “If you believe from the evidence that,the defendant was guilty of negligence, and the plaintiff by the exercise of ordinary care and diligence could have avoided the consequence of such negligence on the part of the defendant compan}', then I charge you that the plaintiff in this caso would not be authorized to recover.” And error is assigned upon the court’s giving the charge just quoted. Authority for the doctrine here stated can be found in the case of Central of Ga. Ry. Co. v. McClifford, 120 Ga. 90, and in the reasoning of the learned Justice who delivered the opinion, as well as in the cases there cited. In the McClifford case it was said, “Complaint is made that the judge charged the jury that the plaintiff was bound to the exercise of ordinary care; it being contended that as he was an employee he was bound to the exercise of extraordinary diligence. There was no error in this charge. The degree of diligence which the law requires of an employee in ordinary diligence only.” There may be some conflict in the decisions on the subject of the negligence of a railroad employee which will bar a recovery; but it is unnecessary to discuss them here, for, even if the use of the words, “ordinary care and diligence,” might have tended to mislead the jury and cause them to test the conduct of the plaintiff under the circumstances of the present case by too low a standard of care and diligence if nothing further had appeared in the charge in reference to the employee’s duty to exercise due diligence and care, the wrongful impression made was no doubt changed and corrected by other portions of the court’s charge wherein they were instructed that before the plaintiff would be entitled to recover, it must appear that he was himself free from fault. "We do not think that, the error, if any, complained of in this_ ground of the motion for a new trial was hurtful or prejudicial to the defendant, in the light of the entire charge.
3. One ground of the motion assigns error upon the following charge of the court: “If you determine from the evidence in this case, gentlemen, that the plaintiff is entitled to recover damages, and you further find from the evidence that he suffered pain and suffering, you can look to the evidence and determine what amount
5. The court was requested in writing to charge the jury as follows: “When an employee of a railway company has his choice of two ways in which to perform a duty, the one safe, and the other dangerous though convenient, he is bound to select the safe method; and if, having such choice, he chooses the dangerous method and is hurt by the railroad company, he can not recover.” The court did not err in refusing to give this charge. It was not a correct statement of the law in that it omits any reference to the employee’s knowledge of the existence of the two ways, one of which is safe. A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial. Etheridge v. Hobbs, 77 Ga. 531. -Upon the employee’s knowledge of the fact that there were two ways mighl depend ihe other material question as to his negligence in the choice of ways.
6. No error committed by the court in his charge is shown in any of the grounds of the motion. The evidence authorized the verdict,, and the court did not err in overruling the motion.
Judgment affirmed.