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Lawskills.com Georgia Caselaw
KNIGHT v. ATLANTA TRANSIT SYSTEMS, INC.
51700.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
CLARK, Judge.
1. Where a passenger sues a common carrier for its alleged negligence the statutory presumption of carrier's negligence terminates upon rebuttal evidence as to defendant's exercise of due care so that the question of negligence is then for the jury.
2. Any error in excluding evidence relative to expenses incurred in treatment affords no basis for reversal where the jury finds for defendant on the issue of liability.
3. A passenger plaintiff suing a common carrier has the duty to exercise ordinary care for his own safety.
1. Appellee's counsel has correctly dealt with plaintiff's contentions on the first three enumerations alleging error in the trial court's overruling of the general grounds of the new trial motion. Therefore, we adopt that section of appellee's brief: (For convenience we omit quotation marks and delete argumentative portions.)
Appellant, who was plaintiff in the trial court, contends that the appellee -- defendant below -- is a common carrier required to exercise extraordinary diligence by Code 18-204. It is further the appellant's contention that having proved injury to appellant-passenger, Code 68-710 raised the presumption that appellee carrier failed to exercise extraordinary care. Relying on the proposition that the presumption is rebutted only by proof that appellee exercised extraordinary diligence, appellant asserts:
"[T]here is absolutely nothing in his testimony that would indicate that the defendant exercised extraordinary diligence. Plaintiff contends that extraordinary diligence would be something like the driver getting off the bus and helping the ladies down." (Appellant's brief, pp. 5, 6).
However, appellant is in error with respect to the quantum of evidence necessary to rebut the presumption created pursuant to Code 68-710. Appellant's formulation would place the entire burden of proof of plaintiff's claim upon the defendant; that is not the purpose of the statute. The purpose and operation of the statute is clearly stated in McVeigh v. Harrison, 68 Ga. App., 316, 319 (22 SE2d 752) as follows:
"The purpose of the statute was to create an inference and cast upon the defendant carrier the duty of producing some evidence to the contrary, and as we have seen when that is done the inference is at an end and the question of negligence becomes one for the jury upon all the evidence."
See also Brown v. Kirkland, 108 Ga. App. 651 (134 SE2d 472).
The rebuttal evidence showing defendant's due care with respect to the alleged negligence is clearly sufficient to terminate the inference created by Code 68-710. Consequently, the question of negligence was for the jury under all the evidence.
Appellant further contends that extraordinary diligence would require the driver to get off the bus and help the ladies down. However, the general rule is to the contrary:
"Ordinarily a common carrier of passengers by streetcar or other conveyance on city streets discharges its legal duty to a passenger when it deposits him at a usual and reasonably safe place for alighting and crossing the street. . ." Locke v. Ford, 54 Ga. App. 322 (3) (187 SE 715). See also Ga. & F. R. v. Thigpen, 141 Ga. 90 (1a) (80 SE 626).
In the present case, plaintiff neither alleged nor proved any special circumstances which would raise any duty of defendant to physically assist the plaintiff's departure from the bus. The question in any event was for the jury:
"Whether in a given case the circumstances are such as to suggest the necessity of assisting a passenger to board or alight from a train or car is a question to be determined by the jury." Metts v. Louisville &c. R. Co., 52 Ga. App. 115, 117 (182 SE 531).
2. Appellant's fourth enumeration asserts that certain bills for medical services rendered to plaintiff were erroneously excluded. As the jury returned a verdict for defendant on the issue of liability, "any error in the admission or exclusion of evidence relative to the injuries or damages, their extent, or expenses incurred in their treatment, was harmless and affords no ground for reversal. Stubbs v. Greyhound Lines, Inc., 116 Ga. App. 58 (2) (156 SE2d 474), and see cases collected in Maloy v. Dixon, 127 Ga. App. 151, 156 (193 SE2d 19), footnote 2." Parham v. Roach, 131 Ga. App. 728, 730 (1) (206 SE2d 686).
3. The remaining enumeration argues that the contributory negligence rule is not the same in passenger versus common carrier cases as it is in other tort cases because of the carrier's duty to exercise extraordinary diligence. This argument has no merit. The duty to exercise extraordinary care which is imposed upon common carriers as defendants does not abrogate the requirement which a tort plaintiff has under Code 105-603 to exercise ordinary care for his own safety to avoid the consequences caused by the defendant's negligence.
Judgment affirmed. Bell, C. J., and Stolz, J., concur.
Notes
1  Atlanta has 28 streets bearing the name of Peachtree (spelled as one word); none of those thoroughfares contains a peach tree except in containers placed in front of commercial establishments.
Hansell, Post, Brandon & Dorsey, Jule W. Felton, Jr., Paul Oliver, for appellee.
W. C. Dominy, Robert T. Efurd, Jr., for appellant.
ARGUED JANUARY 13, 1976 -- DECIDED FEBRUARY 5, 1976 -- REHEARING DENIED FEBRUARY 17, 1976 -- CERT. APPLIED FOR.
Friday May 22 08:18 EDT


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