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done by his consent, or is caused by his own negligence. 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 default attributable to him.(Sec. 2322.)36 "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases, the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” (Sec. 3830.) 37 Under these statutes, it has been held, the doctrine of comparative negligence prevails.98 On this point, the supreme court of the State said: “At common law, if the negligence of the plaintiff contributed to the injury, he could not recover. This doctrine referred to usually as that of 'contributory negligence,' is not the law of this State; but the doctrine referred to often as that of 'comparative negligence,' is the rule of force here. This rule authorizes a recovery by the plaintiff, although he was at fault, provided he was injured under circumstances where, by the exercise of ordinary care on his part, he could not have avoided the consequences of the defendant's negligence.'” In Christian vs. Macon R., etc., Co.,99 it is held that where both the plaintiff and defendant have been negligent, a recovery can be had unless the plaintiff's negligence was equal to or greater than the negligence of the defendant, or unless the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence. In Columbus vs. Angling to which was an action against a municipal corporation for injuries caused by defects in its sidewalks, the Court said: “There was no error in refusing to charge that any contributory negligence on the part of the plaintiff would defeat a recovery, and that in order to recover, she must show herself to have been free from default. Whatever may be the rule in other jurisdictions, it has long been settled, in this State, that in a case like the present, contributory negligence does not necessarily debar a recovery.There are numerous other cases, a few of which are cited below, showing that the Georgia rule permits a recovery by the plaintiff notwithstanding contributory negligence:" In the last case cited, the Court said: "The defendant will not be relieved, although the plaintiff may in some way have contributed to the injury sustained, but in that event the damages shall be diminished by the jury in proportion to the default attributable to him. It bas been held, however, in suits against railroad companies by employes, that if the negligence of the employe, however slight, appreciably contributed to the injury, he cannot recover.42 These and numerous other Georgia cases have denied the right of recovery where the employe of a railroad was guilty of contributory negligence, and seem to ignore entirely the doctrine of comparative negligence. But in Georgia R. Co. vs. Pittman," which was an action by the widow of a railroad employe for damages for his death, caused by the negligence of the company, the Court said in holding the instructions of the trial court not erroneous: "The distinction is clearly drawn in the instructions), between that negligence which, on the part of plaintiff's husband, would defeat it in part. In the one case, his negligence must have caused the disaster itself alone; in the other, it did not alone cause it, but the company's default and his negligence together did the work. In the first case the judge instructed the jury that there could be no recovery; in the second, that there might be, but that it was the duty of the jury to diminish damages in proportion to the negligence of the husband." The instructions here approved were considered together with another statement in the charge of the court that the plaintiff could not recover, "if the deceased could have avoided the consequences to himself by the exercise of ordinary care.” It is not shown by the decisions that a different rule as to contributory negligence is intended to be applied to railroads and their employes from that applicable to other relations, though such seems to be the effect of a number of cases. The decisions are not always to be reconciled and the provisions of the statutes themselves seem to be in conflict.

36 Sec. 2322.
37 Sec. 3830.
8s Western, etc., R. Co. vs. Fergu-

99 120 Ga., 314.
40 120 Ga., 785.

son, 113 Ga., 708.

Savannah, etc. R. Co. vs. Stewart,

11 Ga., 427.; Savannah, etc., R. Co. vs. Smith, 93 Ga., 742; Macon, etc., R. Co. vs. Davis, 27 Ga., 742; Rome vs. Dood, 58, 238; Atlanta, etc., R. Co. vs. Wyly, 65 Ga., 120; Branham vs. Central R. Co., 78 Ga.,

« Little vs. Southern R. Co., 120

Ga., 347; Western, etc., R. Co.
Vs. Herndon, 114 Ga., 168;
Prather vs. Richmond, etc., R.
Co., 80 Ga., 427; Georgia, etc.,

R. Co. vs. Hicks, 95 Ga., 301. • 73 Ga., 325.

It has been expressly denied that the doctrine of comparative negligence prevails in Tennessee.“ But many cases, some of which are cited below, show that a modified form of the doctrine of contributory negligence prevails in that State. This rule is that the plaintiff's negligence when contributing to his injury as the proximate cause thereof, will bar a recovery, and that no recovery can be had where the parties are equally blamable; but that, although the plaintiff has been guilty of some negligence, yet if he " East Tennessee, etc., R. Co. vs.

12 Lea (Tenn.), 55; East TennHull, 88 Tenn., 33; East Tenn

essee, etc., R. Co. vs. Aiken, 89 essee, etc., R. Co. vs. Gurley,

Tenn., 245.

44

could not by the exercise or ordinary care have avoided the consequence of the defendant's negligence, he may recover, and his negligence, if any, will be considered in mitigation of damages.45

In Kansas, in the earlier cases, it was held that slight neglect on the part of the plaintiff which was not the proximate cause of the injury did not amount to a want of ordinary care and would not bar a recovery. But it has been declared that the doctrine of comparative negligence has not been adopted in that State, and that the rule of contributory negligence prevails."

Except as heretofore shown, no jurisdiction has adopted the doctrine of comparative negligence, and in the most jurisdictions it has been expressly repudiated. SECTION 89. LIABILITY OF PUBLIC CORPORATIONS

FOR NEGLIGENCE. The important subject of the liability of Public Corporations for negligence will be taken up under the Subject of Public Corporations.“ 45 Louisville vs. R. Co. vs. Burke, 6

Kan., 38; Mason vs. Missouri Coldw. (Tenn.), 45; Nashville,

Pac. R. Co., 27 Kan., 83; etc., R. Co. vs. Smith, 11 Heisk.

Wichita, etc., R. Co. vs. Davis, (Tenn.), 455; Nashville, etc.,

37 Kan., 743. Ř. Co. vs. De Armond, 86 Tenn. 67 Kansas Pac. R. Co. vs. Peavey, 73.

29 Kan., 170; Atchinson, etc., es Union Pac. R. Co. vs. Rollins, 5

R. Co. vs. Hughes, 55 Kan., Kan., 167; Sawyer vs. Sauer,

491; Chicago W. R. Co. ve 10 Kan., 466; Pacific R. Co. vs.

Bailey, 66 Kan., 115.
Houts, 12 Kan., 328; Kansas « Vol. VIII. Subject 25.
Pac. R. Co. vs. Pointer, 14

48

NINTH SUBJECT.

Damages.

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