Southern Express Co. v. Hughes

Luke, J. 1.- Under the facts developed in this ease, the principles of law (1) that if both_ the plaintiff and the defendant were free from fault, the injury will be attributed to accident, and no recovery can be had, and (2) that it was incumbont upon the plaintiff to exercise ordinary care and diligence in using the streets, and (3) that if both parties were at .fault, the damages should be apportioned, were entirely germane, and the judge erred' in refusing to give in charge the requested instructions embodying these legal doctrines, which were couched in appropriate form and language, and were not covered by his charge to the jury. As to the principle of accident, see Holliday v. Athens, 10 Ga. App. 709 (74 S. E. 67) ; as to-the failure to exercise ordinary care, see Park’s Code, § 4426, and notes; and as to diminution of damages, see Americus &c. R. Co. v. Luckie, 87 Ga. 6, 7 (13 S. E. 105) Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696 (70 S. E. 234) ; Central Ry. Co. v. Madden, 135 Ga. 205 (69 S. E. 165, 31 L. R. A. (N. S.) 813, 21 Ann. Cas. 1017); Rollestone v. Cassirer, 3 Ga. App. 161 (59 S. E. 442). _ 2. The remaining special grounds of the motion for a new trial are without substantial merit, or the alleged errors are such as are not likely to recur on another trial. Judgment •reversed. Wade, C. J., and Jenkins, J., concur.