Opinion
27234.
ARGUED JUNE 12, 1972.
DECIDED JUNE 28, 1972.
Certiorari to the Court of Appeals of Georgia — 125 Ga. App. 716 ( 188 S.E.2d 891).
Bennett, Pedrick Bennett, Larry E. Pedrick, Wilson G. Pedrick, for appellant.
Leon A. Wilson, II, Benjamin Smith, Memory Thomas, for appellee.
In an action brought by a railroad employee against his employer under the provisions of the Federal Employers' Liability Act, it is not error to refuse to charge without qualification that there rests upon the employee a duty to exercise ordinary care for his own safety and that the failure to exercise such are constitutes negligence upon his part.
ARGUED JUNE 12, 1972 — DECIDED JUNE 28, 1972.
Certiorari was granted in this case to review the decision of the Court of Appeals which held that it was not error to refuse to give a requested instruction to the jury in a case brought by a railroad employee against his employer under the Federal Employers' Liability Act, to wit: "I charge you that there rested upon plaintiff, Gerald Dempsey Thomas, in this case a duty to exercise ordinary care for his own safety, being such care as an ordinarily prudent person would exercise under the same or similar circumstances. The failure, if any, of the plaintiff to exercise ordinary care for his own safety would constitute negligence on his part."
The opinion of the Court of Appeals was concurred in by three judges with two other judges concurring in the judgment only. Four judges dissented.
In Atlantic C. L. R. Co. v. McDonald, 103 Ga. App. 328, 331 ( 119 S.E.2d 356), a decision in which the whole court (seven judges at that time) participated, it was held that the failure to give a charge without request similar to the one here requested was not error and that "It would not have been proper for the trial judge to have charged without qualification that a duty devolved upon the plaintiff of exercising ordinary care. Plaspohl v. Atlantic Coast Line R. Co., 87 Ga. App. 506, 508 (2) ( 74 S.E.2d 491)." While dissents were filed upon other grounds, the decision of the Court of Appeals was unanimous upon this point.
It is well settled that an injured employee of a railroad who comes within the provisions of the Federal Employers' Liability Act is not barred from recovery because of his own negligence except where such negligence is the sole proximate cause of his injury.
"A request to charge must be correct and even perfect; otherwise a refusal to give it is not error. Lewis v. State, 196 Ga. 755 ( 27 S.E.2d 659); Gordy v. Dunwody, 210 Ga. 810 ( 83 S.E.2d 7)." Downs v. Powell, 215 Ga. 62 (3) ( 108 S.E.2d 715). "'A request to charge the jury must be legal, apt and precisely adjusted to some principle involved in the case, and be authorized by the evidence.' Spain v. Spain, 203 Ga. 411 (2) ( 47 S.E.2d 279)." Reynolds v. Reynolds, 217 Ga. 234, 269 ( 123 S.E.2d 115).
The requested charge in the present case while stating a general principle of law correctly was not adjusted to the principle of law involved in the case. The requested charge without explanation is subject to the same objections as those in Atlantic C. L. R. Co. v. McDonald, supra, and Plaspohl v. Atlantic C. L. R. Co., supra.
The refusal of the trial court to give the requested instruction was not error, and the Court of Appeals did not err in affirming such judgment.
Judgment affirmed. All the Justices concur, except Jordan, J., disqualified.