prudence." "Where reasonable care is employed in doing an act not itself illegal or inherently likely to produce damage to others, there will be no liability although damage in fact ensues.''25 SECTION 87. CONTRIBUTORY NEGLIGENCE. The doctrine of contributory negligence is, that one cannot recover compensation for an injury from any negligence, into which negligence of his own has to a greater or less degree entered cause, contributing as a proximate to the complained result." Negligence, to be actionable, must be the proximate cause of the injury, and similarly contributory negligence, in order to be a defense must also be a proximate cause of the injury sued on." The application of the doctrine of contributory negligence is well set out in the decision in the case of The Bernina.28 "The cases which give rise to actions for negligence are primarily reducible to three classes as follows: 1. A, without fault of his own, is injured by the negligence of B; then B is liable to A. 2. A, by his own fault, is injured by B, without fault on his part, then B is not liable to A. 3. A is injured by B by the fault, more or less, of both combined; then the following further distinctions have to be made: (a) If notwithstanding B's negligence, A, with reasonable care, could have avoided the injury, 24 Ford vs. London, etc., R. Co., 2 F. & F., 730; Planter's Ware- 25 American and English Ency. of Co. vs. Roach, 64 Ga., 635; $7 Doggett vs. Richmond, etc., R., 28 12 P. D., 58. he cannot sue B; (b) if, notwithstanding A's negligence, B, with reasonable care, could have avoided injuring A, A can sue B; (c) if there has been as much want of reasonable care on A's part as on B's, or, in other words, if the proximate cause of the injury is the want of reasonable care on both sides, A cannot sue B. In such a case A cannot, with truth say, that he has been injured by B's negligence. He can only with truth say, that he has been injured by his own carelessness with N's negligence, and the two combined give no cause of action at common law." In Pennsylvania R. Co. vs. Aspell," the defendant company negligently carried the plaintiff, a passenger, beyond his destination. The speed of the train was slackened somewhat at the switches, but after passing these the speed became greater. The conductor warned the plaintiff not to attempt to get off while the cars were moving, and told him that he would back the train to the station. The plaintiff, however, leaped from the car and was hurt. It was held that he was guilty of contributory negligence, which was the immediate and proximate cause of the injury, and could not recover. The case of Flagg vs. Hudson,30 will serve as an illustration of the class of cases, which do not amount to contributory negligence. In this case, the plaintiff, driving along a highway on a dark night, pulled his horse to the left to avoid going down an embankment on the right of the road, which had negligently been left without a railing. By so going down he was brought into collision with another vehicle which came from the opposite direction. It was held that the failure of the town authorities properly to safeguard the road was the proximate cause of the damage, and 29 23 Pa. St., 30 142 Mass., 289. 147. that the plaintiff was not chargeable with contributory negligence in being on the wrong side of the road. SECTION 88. COMPARATIVE NEGLIGENCE. In a few states the doctrine of contributory negligence is modified by what is known as the doctrine of comparative negligence. The doctrine of comparative negligence," by which a plaintiff in an action for damages for negligence, although himself guilty of contributory negligence, is permitted to recover where the negligence of the defendant is what is termed "gross," in comparison with the negligence of the plaintiff, which is termed "slight," had its most extensive development in Illinois, and was for many years the settled rule of the courts of that state." The different degrees of negligence recognized in the application of the doctrine were gross negligence, which was said to be the want of slight degree; slight negligence, or the want of great diligence, and ordinary negligence, or the want of ordinary diligence. It was accordingly held that a plaintiff might have been guilty of slight contributory negligence and yet have shown no want of ordinary care. In later cases, as appears from the reported case, the doctrine is entirely repudiated.35 34 The sections of the Georgia code relating to contributory negligence, are as follows: "No person shall recover damages from a railroad company for injury to himself or his property, where the same is 1 The citations on comparative negligence are from American and English Annotated Cases, Vol. 3, Note, p. 48. "Galena, etc., R. Co. vs. Jacobs, 20 Ill., 478; Chicago, etc., R. Co. vs. Harwood, 90 Ill., 425; Chicago, etc., R. Co. vs. Johnson, 103 Ill., 512; Chicago, etc., R. Co. vs. Stearns, 105 Ill., 554; Wabash, etc., R. Co. vs. Wallace, 110 Ill., 114. 33 Chicago, etc., R. Co. vs. Johnson, 103 Ill., 512. Chicago, etc., R. Co. vs. Watner, 123 Ill., 38. 35 Macon vs. Holcomb, 205 Ill., 643; Chicago, etc., Coal Co. vs. Moran, 210 Ill., 9. done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him." (Sec. 2322.) "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases, the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." (Sec. 3830.)97 Under these statutes, it has been held, the doctrine of comparative negligence prevails.38 On this point, the supreme court of the State said: "At common law, if the negligence of the plaintiff contributed to the injury, he could not recover. This doctrine referred to usually as that of 'contributory negligence,' is not the law of this State; but the doctrine referred to often as that of 'comparative negligence,' is the rule of force here. This rule authorizes a recovery by the plaintiff, although he was at fault, provided he was injured under circumstances where, by the exercise of ordinary care on his part, he could not have avoided the consequences of the defendant's negligence.'" In Christian vs. Macon R., etc., Co.," it is held that where both the plaintiff and defendant have been negligent, a recovery can be had unless the plaintiff's negligence was equal to or greater than the negligence of the defendant, or unless the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence. In Columbus vs. Anglin," which was an action against a municipal corporation for injuries caused by 38 Sec. 2322. "Sec. 3830. "Western, etc., R. Co. vs. Fergu son, 113 Ga., 708. 120 Ga., 314. 40 120 Ga., 785. defects in its sidewalks, the Court said: "There was no error in refusing to charge that any contributory negligence on the part of the plaintiff would defeat a recovery, and that in order to recover, she must show herself to have been free from default. Whatever may be the rule in other jurisdictions, it has long been settled, in this State, that in a case like the present, contributory negligence does not necessarily debar a recovery." There are numerous other cases, a few of which are cited below, showing that the Georgia rule permits a recovery by the plaintiff notwithstanding contributory negligence:" In the last case cited, the Court said: "The defendant will not be relieved, although the plaintiff may in some way have contributed to the injury sustained, but in that event the damages shall be diminished by the jury in proportion to the default attributable to him." It has been held, however, in suits against railroad companies by employes, that if the negligence of the employe, however slight, appreciably contributed to the injury, he cannot recover.12 These and numerous other Georgia cases have denied the right of recovery where the employe of a railroad was guilty of contributory negligence, and seem to ignore entirely the doctrine of comparative negligence. But in Georgia R. Co. vs. Pittman, which was an action by the widow of a railroad employe for damages for his death, caused by the negligence of the company, the Court said in holding the instructions of the trial court not 43 41 Savannah, etc. R. Co. vs. Stewart, 11 Ga., 427.; Savannah, etc., R. Co. vs. Smith, 93 Ga., 742; Macon, etc., R. Co. vs. Davis, 27 Ga., 742; Rome vs. Dood, 58, 238; Atlanta, etc., R. Co. vs. Wyly, 65 Ga., 120; Branham vs. Central R. Co., 78 Ga., 42 Little vs. Southern R Co., 120 Ga., 347; Western, etc., R. Co. vs. Herndon, 114 Ga., 168; Prather vs. Richmond, etc., R. Co., 80 Ga., 427; Georgia, etc., R. Co. vs. Hicks, 95 Ga., 301. 43 73 Ga., 325. |