Brown Store Co. v. Chattahoochee Lumber Co.

Simmons, C. J. The first three headnotes require no elaboration. As to the fourth, see the case of Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328. As to the fifth, see Civil Code, § 3913, and Cheeves v. Danielly, 80 Ga. 115. As to the degree of diligence due by the defendant to the plaintiff the court in effect charged that, if the slab-pit was not a nuisance, then plaintiff could not recover unless it appeared that the defendant had been grossly negligent in its operation. It is clear that the defendant was bound, in such case, to exercise ordinary and reasonable care and diligence. 1 Thomp. Neg. §§ 727-730 : 13 A. &E. Enc. Law (2d ed.), 414. Failure on the part of the defendant to use this degree of care would be such negligence as to make it liable for damages thereby done to the plaintiff. Under our Civil Code, (§ 2898) the absence of ordinary diligence is termed ordinary neglect, while (§ 2900) gross neglect is defined as “the want of that care which every man of common sense, how inattentive soever he may be, takes of his own property.” The court’s charge was evidently based upon what was said in the opinion in Macon & Western R. Co. v. McConnell, 31 Ga. 133. An examination of the questions made in that case and of the charge there under review convinces us that the term “gross negligence” was used by Judge Lyon to mean simply a want of ordinary care. The court approved the charge of Judge Bull, in which appeared the [813] following: “ They are not responsible for accidents happening from the exercise of these rights, unless these accidents result from the gross negligence or carelessness -of the employees or agents of the road; and the plaintiff must prove that the injury-complained of did result from such culpable neglect or careless-* ness. The amount of diligence required is just so much as an, ordinarily prudent man would use in. his own affairs.” This part, of the charge was not excepted to, but it is evident that in it “ gross negligence ” was used to denote merely a want of ordinary-care. This is especially clear when we compare th.e opinion in, Macon & Western R. Co. v. Davis, 13 Ga. 68, in which Judge Nisbet used the term in the same way, saying: “ They are bound, to reasonable care and diligence, and will be liable for gross, neglect. In cases arising under this rule, the question is left to. the jury, whether with reference to the caution which a man of ordinary prudence would observe, the defendant has been guilty of gross negligence.” There is some authority outside of this State for so using the term, and the cases just discussed were both decided before our code went into effect. Since the adoption of the code, the terms “ ordinary neglect” and “ gross neglect” have in this State a definite meaning, and in a case in which the defendant is bound to use ordinary diligence it is error, as against the plaintiff, for the court to charge that the defendant is liable for-gross negligence only. So. Mut. Ins. Co. v. Hudson, 113 Ga. 434. Judgment on main bill of exceptions reversed; on cross-bill affirmed. All the Justices concur.