Freeman v. Collins Park & Belt Railroad

Fish, J. B. F. Freeman sued the Collins Park ■& Belt Railroad Company for damages for personal injuries alleged to have been sustained by him by the running of the defendant’s car while he was a passenger thereon. There was a verdict for the defendant, and the case is here upon a bill of exceptions sued out by the plaintiff, assigning error upon the overruling of his motion for a new trial. One ground of the motion for a new trial was, that the court erred in charging as follows: “ The effect of the plea, gentlemen, is to put the burden of proof on the plaintiff, the party bringing the suit, to show to your satisfaction, by a legal preponderance of the [80] evidence in tlie case, that the allegations he makes are true.” The error assigned upon this charge was, that it “required the plaintiff to make out in detail the allegations of negligence made by him, when in truth and in fact the law puts the burden upon the defendant of defending in detail the allegations made when it is once proven that plaintiff was injured.” This instruction correctly stated the rule in cases of this character, when taken in connection with this additional charge given by the court, viz.: “ If you believe the plaintiff was a passenger of the defendant, then the law would raise a presumption against the defendant company that it was negligent, and the burden would be on the defendant to rebut that presumption by showing it was not negligent, or that the plaintiff by the exercise of ordinary care on his part could have avoided the consequences to himself of the defendant’s negligence, if that appears.” Civil Code, § 5160; Killian v. Georgia Railroad Co., 97 Ga. 730(3). Another charge complained of was: “Still he can not recover if you believe that by 'the exercise of ordinary care on his part he could have avoided the consequences to himself of the defendant’s negligence, if that appears,” the assignment of error being that there was no evidence to authorize this instruction. The exception is well taken, but we do not think the error is cause for a new trial. The only issue in the case was, whether or not the defendant was negligent, there being no contention of negligence on the part of the plaintiff, and we think it clear that the jury were not influenced by this charge. A careful study of the evidence convinces us that it was sufficient to authorize theyverdict, and the refusal of a new trial was not erroneous., Judgment affirmed. By five Justices.