Dempsey v. City of Rome

Simmons, C. J. 1. Although a charge to the effect that if a physical injury to the plaintiff resulted from the mutual negligence of ‘both parties, and that if the plaintiff contributed “three fourths or on© third or some other amount to the injury,” his recovery would be reduced by the amount of his default, was, under the ruling of 'this court in Central Railroad Company v. Newman, 94 Ga. 560, incorrect, yet where the only complaint made of such charge is, that it was erroneous because “any contributory negligence on the part of the plaintiff would defeat a recovery,” the giving of such charge is not cause for a new trial. 2. This court having decided when this case was before it at the March term, 1894, that it was error to grant a nonsuit, and the plaintiff’s evidence at the trial now under review being substantially the same as at the first trial, and one new trial having since then been granted by the 'trial court, it was error for that court to grant a second new trial, it appearing that the case really turned upon the credibility of witnesses, that the jury believed those introduced for the plaintiff,- and that their evidence was amply sufficient to warrant a recovery. Judgment reversed.