Savannah, Thunderbolt & Isle of Hope Ry. v. Beasley

Simmons, Justice. 1. Counsel for defendant requested the court to charge .as follows: “If both the plaintiff and defendant are at fault, damages are to be diminished in proportion to the fault attributable to the plaintiff.” When the judge reached the subject of contributory negligence, in his charge, he read this request to the jury as a part of his charge. Counsel for the defendant thereupon interrupted the judge and stated that if the request was written as read by the court, it was a clerical error, and that he desired the court to state the proviso in the law "that recovery could be had provided the plaintiff, in the exercise of ordinary care, could not have avoided the ■consequences of defendant’s negligence. The judge, in his certificate to the motion for a new trial, states that, not comprehending or being able to understand ■the explanation, he requested counsel, if he (counsel) desired his written request modified, to reduce the modifi■cation to writing so that it could be understood. Some volume of Georgia Reports was referred to, but no decision was read. The written modification of the request was never tendered, and the jury were permitted to retire. The failure of the judge to comply with the oral request to modify the written charge was not error. When the court requested counsel to reduce the modification to writing, so that it could be understood, counsel should have complied with the request. The court is not bound to give in charge a request not made in writing, and clearly is not bound to give in charge oral modifications ■of a written request, especially where he has asked counsel to reduce the modification to writing and counsel has failed to do so. A request of this kind is sometimes ■calculated to confuse the judge, and it would not always [145] be safe to change or modify the written charge upon ■such a request, as the judge might misunderstand counsel or not fully comprehend the modification desired. 2, 3. A car upon the defendant’s electric railway line, while crossing a public highway between Savannah and the town of "Warsaw or Thunderbolt, came in collision with the 'plaintiff, who was driving his wagon across the highway; and this action was brought to recover damages for the injury thereby sustained. The judge, in •charging the jury, instructed them that “the precise thing which every prudent man is bound to do before driving upon a railroad track, is that which every prudent man would do under like circumstances. If a pru•dent man would stop and look and listen, so must every •one else, or take the consequences so for as the consequences may have been avoided by that reason or by that measure. In the same way, the precise thing which every motorman was bound to do before driving upon a crossing where vehicles are likely to be found crossing, if you believe this was such a crossing, is that which every prudent man would do under such circumstances. .If a prudent man, under such circumstances, would stop his car, and would look and see and listen, or if he would go at a very low rate of speed, then the motorman would be bound to do whatever a prudent man would do under such circumstances, or else take the consequences so far as the consequences could have been avoided by that means.” We think the latter part of this charge was ■erroneous, under the facts of this ease. It puts a stricter rule of diligence upon street railway companies than the law imposes. Such a company is under no duty to stop its ears before reaching a public crossing, for the purpose •of looking and listening, when there is no apparent reason for so doing. These companies ar.e chartered for the benefit of the public; the public require rapid “transit, and if a motorman driving one of these cars [146] were compelled to stop and look and listen for the approach of every wagon or buggy likely to cross the railway line, the public would be greatly inconvenienced and rapid transit would be rendered impracticable. The cars of this railway company had the superior right of way, and people who intend to cross its track should be careful to look and listen in order to avoid a collision with them. It is the duty of the motorman also to look and listen when approaching a public crossing, in order to avoid a collision with persons crossing, and due diligence would probably require him to ring his bell or give some signal of his approach to the crossing to put persons about to cross upon notice of his approach; but we do not think the law requires him to stop the car for that purpose, unless he sees that a collision cannot be avoided unless he does stop. On this subject see Booth on Street Railways, §304 et seq., and cases cited; 4 Am. and Eng. Enc. of Law, Crossings, p. 951, par. 44, and note. Under the facts of this case, however, giving the jury credit for ordinary intelligence, we do not think the erroneous charge on this subject could have prejudiced the defendant. The evidence fully warranted the verdict, and we do not feel constrained to grant a new trial for this error alone. Judgment affirmed.