Savannah, Thunderbolt & Isle of Hope Railway v. Grogan

Lamar, J. A new trial is not required because the court charged as follows: “I repeat what I said about contributory negligence. If there should be contributory negligence upon the part of the plaintiff, she could yet recover, provided her negligence did not amount to a want of ordinary care; but her damages would have to be diminished in proportion to her contribution.” This w;as not a case where the question of avoiding the injury by ordinary care was involved (Civil Code, § 3830), and the rule was stated too strongly against the plaintiff, who might have been entitled to recover even though her contributory negligence did amount to a want of ordinary care. The charge of the court must be construed in the light of the subject-matter about which the judge is speaking (Brown v. Matthews, 79 Ga. 7); and where, in instructing the jury, he charged that the plaintiff can not allege one set of facts and recover by [464] proof of another, as “ the plaintiff . . is presumed to know how he was injured better than anybody else, . . and is presumed to set out the facts exactly as they occurred, and upon them the law requires him to stand or fall,” this was stating a rule of pleading and of presumption against the plaintiff; it was not the expression of an opinion that, as a fact, “the plaintiff knew more about the case than any one else,” nor did it give to her “ a higher degree of credit as a witness than she was entitled to have,” nor charge that there, was a presumption that her statements in the petition were true. "Where in a suit for personal injuries damages are claimed for incapacity to labor, and for suffering, up to the time of the filing of the suit, but without objection evidence is admitted as to the pain, suffering, and incapacity to labor, up to the time of the trial, and the judge charges on such theory, a new trial will not be granted. If objection had been made at the time, the evidence should have been excluded, or the plaintiff could have amended. Ratteree v. Chapman, 79 Ga. 574 (2). Judgment affirmed. By Uve Justices.