Opinion
37405.
DECIDED NOVEMBER 25, 1958.
Action for damages. Pierce Superior Court. Before Judge Roddenberry. July 26, 1958.
Bennett, Pedrick Bennett, Wilson G. Pedrick, for plaintiff in error.
S. Thomas Memory, contra.
Where the court undertakes to charge the comparative negligence doctrine it should charge all the law with respect there-to that is material and pertinent, and where the charge as given failed to give the jury any formula for diminishing the damages in proportion as they should find that the amount of the plaintiff's negligence bore to the defendant's negligence, and failed to instruct them that, if the plaintiff was guilty of negligence which equalled or exceeded the negligence of the defendant, the plaintiff could not recover, and failed to instruct them that, if the sole proximate cause of the plaintiff's injuries was her negligence, she could not recover, where there was evidence from which the jury could have found that the plaintiff was negligent and that her negligence contributed to her injuries, such charge was error, and the court erred in overruling the special grounds of the motion for a new trial pointing out these deficiencies in the charge.
DECIDED NOVEMBER 25, 1958.
Bertha Green sued the Atlantic Coast Line Railroad Company for damages for injuries allegedly sustained when she fell while alighting from the defendant's passenger train at Offerman, Georgia. She alleged that she was alighting and when she placed her left foot on the "step box" placed on the ground by the conductor below the last step of the coach, the step box turned over and threw her violently to the ground inflicting the injuries complained of. She alleged that the defendant's agent was negligent in placing the said "step box" on the ground on loose rocks or gravel and in an insecure manner so that it tipped when she stepped on it. The defendant answered denying the material allegations of the petition and alleging that the plaintiff in alighting from the coach stepped on the box in an awkward position, or in such a way as to cause her to fall therefrom, and that the plaintiff's injuries were due to her failure to exercise ordinary care for her own safety and that she could have avoided any of the alleged negligence of the defendant by the exercise of ordinary care. On the trial, the jury returned a verdict for the plaintiff in the amount sued for ($2,500), and the defendant made a motion for new trial on the general grounds, which it amended by the addition of three special grounds. The exception here is to the denial of that motion.
The court charged the jury as follows: "If the jury should determine in passing on the case should find that the plaintiff was injured as alleged in her petition and was injured by negligence on the part of the railway company as alleged in her petition, then I charge you that she would be entitled to recover; [but if you should believe from the facts of the case there was negligence on the part of the defendant railway company, and that the plaintiff in this case was also negligent in a way that contributed to her injury, yet if she could not have prevented the injury by the use of ordinary care, still she would be entitled to recover, but her recovery should be diminished if the jury should come to that conclusion]"
In the first special ground of the motion for a new trial, error is assigned on the above portion of the charge which we have enclosed in brackets on the ground that it undertakes to charge the principle of comparative negligence but that the charge as given is incomplete and fails to give to the jury any basis or formula for diminishing the damages, and because a charge on the principle of apportionment of damages was required by the pleadings and the evidence, and the court had the duty of giving a correct, full and complete charge on these principles if it undertook to charge them at all.
In the second special ground, error is assigned because the court failed to charge the jury that if the plaintiff was guilty of negligence which equalled or exceeded any negligence of the defendant, then the plaintiff could not recover. "It is well settled that when a judge undertakes to charge the law upon any subject, he must charge all of it upon that subject that is material and applicable to the case. Rouse v. State, 2 Ga. App. 184 ( 58 S.E. 416); Harper v. State, 17 Ga. App. 561 (2) ( 106 S.E. 875)." Hinson v. Hooks, 27 Ga. App. 430 ( 108 S.E. 822).
Nowhere in the charge, save in the portion quoted above, did the court undertake to touch on the comparative negligence or contributory negligence doctrine. The court did undertake to charge the rule which precludes a recovery by the plaintiff where the plaintiff failed to exercise ordinary care to avoid the consequences of the defendant's negligence, but nowhere did the court furnish the jury a standard by which they could diminish the plaintiff's damages if they found that she was contributorily negligent. Having undertaken to charge this principle, it was the court's duty to do so correctly. Brown v. Meikleham, 34 Ga. App. 207 (3) ( 128 S.E. 918). See also Southern Ry. Co. v. Bottoms, 35 Ga. App. 804 (1) ( 134 S.E. 824); Rogers v. McKinley, 48 Ga. App. 262, 265 ( 172 S.E. 662). For this reason, the court erred in overruling the first special ground of the motion for new trial.
Since the court undertook to charge the rule of law with respect to comparative negligence, his failure to embody in the charge the principle of law referred to in the second special ground was, also, erroneous. Mitchell v. Mullen, 45 Ga. App. 282 (8) ( 164 S.E. 276); Shackleford v. Ridley, 71 Ga. App. 568 (1) ( 31 S.E.2d 429).
It was likewise error, in view of the pleadings and the evidence in this case, for the court to fail to instruct the jury, as complained of in special ground 3, that if the proximate cause of the injuries to the plaintiff was her own negligence, she could not recover. Southern Cotton Oil Co. v. Caleb, 143 Ga. 585 (1) ( 85 S.E. 707). Brown v. Meikleham, 34 Ga. App. 207, supra.
With respect to all of the special grounds of the motion for new trial, the defendant contends that there was no evidence that the plaintiff was in any way negligent. Without detailing the evidence, it is sufficient to say that, while the evidence as to the negligence of the defendant and the evidence as to the negligence of the plaintiff was in many respects weak and unsatisfactory, the jury were authorized to infer from the facts in evidence that the plaintiff was not in the exercise of due care in alighting from the defendant's coach. This is so because the defendant's witness testified that she appeared unsteady on her feet and that the "step box" did not turn over as contended by the plaintiff. We cannot say that a finding that the plaintiff was in some respects negligent would not have been authorized.
2. Inasmuch as the evidence on another trial might not be the same, this court will not undertake at this time to pass upon the question as to whether or not the evidence authorized the verdict.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.