Home/Supreme Court of Georgia/City of Rome v. Sudduth

City of Rome v. Sudduth

49 S.E. 300, 121 Ga. 420, 1904 Ga. LEXIS 175
CourtSupreme Court of Georgia
DecidedDecember 10, 1904
StatusPublished
Cited by24 cases

This text of 49 S.E. 300 (City of Rome v. Sudduth) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Rome v. Sudduth, 49 S.E. 300, 121 Ga. 420, 1904 Ga. LEXIS 175 (Ga. 1904).

Opinion

Simmons, C. J.

1. Where a declaration has been demurred to in the trial court and the demurrer overruled and that judgment reversed by this court, upon the return of the remittitur to the lower court the plaintiff has the right to amend his declaration. Charleston Ry. Co. v. Miller, 116 Ga. 92. It is otherwise where the lower court has sustained a demurrer and that judgment affirmed by this court. In the latter case there is nothing in the lower court to amend. Central R. Co. v. Patterson, 87 Ga. 646.

2. The ruling of this court when the case was here before was that there were not sufficient facts alleged to authorize the plaintiff to recover (City of Rome v. Suddeth, 116 Ga. 649); but there was enough in the declaration to amend by.

8. The petition as amended was good against the general demurrers filed thereto.

4. Negligence is a question for the jury. The trial judge can not instruct the jury what facts do or do not constitute negligence, except where declared by statute. Consequently it is error for the judge, in a suit for damages' based on the negligence of the defendant, to charge that if the defendant’s failure to do its duty “was in accordance with the allegations of the plaintiff’s petition, then that would be negligence, as he charges in this case.” Augusta Ry. & El. Co. v. Smith, 121 Ga. 29.

6. Taken in connection with the entire charge, no error appears in the portions of the charge, other than as just above pointed out, to which exception was taken.

6. It is not error to refuse a request to charge which is in part inapplicable to . tfie case. Judgment reversed.

All the Justices concur.

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Bluebook (online)
49 S.E. 300, 121 Ga. 420, 1904 Ga. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-rome-v-sudduth-ga-1904.