Covington vs. The Western & Atlantic Railroad Co.

BLANDFORD, Justice.

The injury to the plaintiff is alleged to have resulted from the failure of the defendant to stop the train at the station a sufficient time to allow him to alight from it in safety.

1. The first ground of the amended motion for new trial is, that the court refused to give the following charge as requested: "The law allows you to take account of the excitement under which an act is done, even where the party is not menaced with bodily hurt, if the circumstances are such as naturally to produce excitement in a prudent person."

We cannot say that this is not good law in the abstract; but we do not think it is strictly applicable to the facts of this case. The plaintiff, who testified as a witness, did not testify as to any excitement he was under at the time he jumped from the train; nor does the declaration state anything in reference thereto. Hence we cannot say that the court committed such an error in refusing to give this charge as would warrant us in reversing the judgment of the court below.

The second ground is, that the court refused to charge "that if, by defendant's negligence, plaintiff was placed in the midst of circumstances calculated to excite and throw a man of ordinary prudence off his guard, and there was a sudden necessity for him to decide, without time for reflection, then his failure to act with perfect calmness and self-possession might not render him culpably negligent or wanting in ordinary care, even though he acted more unwisely than a man of ordinary prudence perfectly cool and self-possessed would have acted; that the law allows the jury to take account of the excitement under which an act is done, even where the party is not menaced with bodily hurt, if the circumstances

Covington vs. The Western & Atlantic Railroad Co.

are such as naturally to produce excitement in a prudent person." What we have said in reference to the preceding ground will apply also to this ground of the motion. While in a proper case made this would be a proper charge for the jury, we do not think that the refusal of the court to give it in charge in this case is such error as to demand a reversal.

2. The last ground of the motion is, that the court charged: "If defendant's agents were guilty of negligence in failing to stop the train a reasonably sufficient time to allow plaintiff to get off, and after the train was in motion at a speed which made it unsafe for plaintiff to jump off in the dark, and under the circumstances, if plaintiff of his own motion jumped off the train and was thus injured, then he could not recover."

We think this charge was error. It took from the consideration of the jury the question of whether the jumping from the train under such circumstances was an act of negligence or of ordinary care and diligence. That was a question for the jury and not for the court. See West End and Atlanta Street Railroad Company vs. Mozely, decided at the last term of this court, (79 Ga. 463,) where a similar charge was held to be error. have repeatedly decided that the question of what is or is not negligence, in cases of this sort, is exclusively for the jury. It is a mixed question of law and fact which the jury must settle for itself.

We

3. If this case had been tried upon a right theory, I do not know that we would grant a new trial even upon this ground, under the facts of the case. But it appears to us that the case was not tried upon the true theory. The main question in this case is, whether the railroad company stopped its train a reasonably sufficient time to allow the plaintiff to depart from the train in safety. If it did, and he jumped off the train after it was again

Hodge vs. Brown.

in motion, he cannot recover. If it did not stop a sufficient time, and if in attempting to get off he was guilty of no negligence, or not such negligence as to bar his right to recover, then he would be entitled to such damages as he may have sustained. That is the only question that need have been submitted to the jury by the court. As to the fact whether the train stopped a sufficient time, the witnesses for the plaintiff and defendant differed. The employés of the railroad testified that the train stopped several minutes, and that the time was sufficient; some of the passengers testified that it stopped about a minute. The court should have left to the jury for their determination the question of whether the time was sufficient or not. If the time was sufficient, he could not recover. If the time was not sufficient, and he attempted to alight after the train started, and was not guilty of such negligence in so doing as would bar his right to recover, he could recover. Or it be that he contributed in some measure to may the injury; and that is a question for the jury. If there was contributory negligence on his part, the jury could set it off against the negligence of defendant, and award the damages accordingly.

While we do not feel inclined to reverse the judgment (for it appears to us that the verdict is sustained by the evidence), yet we feel constrained to do so under the facts of this case.

Judgment reversed.

HODGE S. BROWN.

An ordinary mortgage made to secure a debt infected with usury is not void. Such an instrument passes no title, and is no attempt to pass title, and hence is not within 22057(f) of the code.

July 11, 1888.

Mortgages. Judge KIBBEE. 1887.

Hodge rs. Brown.

Interest and usury.

Title. Before Pulaski superior court. May term,

Mrs. M. C. Brown obtained a rule nisi for the foreclosure of a mortgage on certain land, against two mortgagors. One of them pleaded that the note, which the mortgage was given to secure, was usurious in that it stipulated for interest at twelve per cent. per annum, and the mortgage was therefore void; the note being dated January 4th, 1886.

The presiding judge overruled the plea (the cause having been submitted to him without the intervention of a jury), holding that usury in a plain mortgage would only have the effect to forfeit the excess above legal interest charged. He therefore made the rule absolute for the amount of the principal of the debt with legal interTo this ruling and decision defendant excepted.

est.

A. C. PATE, for plaintiff in error.

MARTIN & COCHRAN, contra.

BLECKLEY, Chief Justice.

Section 2057(f) of the code provides that "all titles made as part of an usurious contract, or to evade the laws against usury, are void." Section 1954 declares that "a mortgage in this State is only a security for a debt, and passes no title." Tried by statute law, the result is, that any security for a debt, which when pure affords the security by passing title, is, when contaminated by usury, void and of no effect. But a security by mortgage, as it passes no title, is not rendered void by the statute. And we know of no law not statutory which requires or authorizes us to hold that a mere ordi

Evans 3. Kilby et al.

nary mortgage to secure a debt has less vitality than the debt itself. When the whole contract for payment is void, so is any mortgage given to secure payment; or, when the contract for payment is void in part, that is, as to so much or such a proportion of the promise, or the stipulated sum, the mortgage also is void to the same extent. So far as the debt is sound the mortgage is sound. Here it is contended that the infirmity of the mortgage is total, though the debt in part is valid. We rule otherwise, and thus affirm the judgment.

I will add for myself that excellent reasons could be given why all securities of every kind taken by a creditor to secure an infected promise, ought to be null and void. Such a rule of law would act as a powerful preventive of usury, and in a case fully proved, would be free from any, even the slightest, injustice to the usurer. What moral right has one who violates the law by taking or contracting to take usury-what moral right has he, having thus insulted the law, to any aid from it to enforce the security upon which he has rested his illegal bargain? It seems quite enough to afford him such remedies to recover his real debt, with lawful interest, as unsecured creditors have by the general collecting laws of the State. When the legislature really wants to prevent the practice of usury, it can do so in a great degree by striking down all securities on which usury is built up.

Judgment affirmed.

EVANS US. KILBY et al.

A motion to reinstate a case which has been dismissed by this court for want of prosecution for providential cause, such as, that the wife of counsel for plaintiff in error was at the time of dismissal expecting to be confined and required her husband's attention, will be denied; there being no suggestion that such providential