
    17021, 17022.
    Georgia Railway & Power Company v. Bryans (two cases).
    Decided September 17, 1926.
    Damages; from city court of Decatur—Judge Daley. October 20, 1925..
    
      Colquitt & Conyers, Hugh Burgess, for plaintiff in error.
    
      Key, McClelland & McClelland, contra.
   Stephens, J.

1. Where the sole proximate cause of an injury to the plaintiff is the negligence of some one other than the defendant, there can be no recovery against the defendant, although the defendant may have been guilty of negligence. In a suit for personal injuries, therefore, where the evidence presents an issue of fact as to whether the' injuries were caused by the negligence of the defendant or the negligence of a third person, it is error to instruct the jury to the effect that there can be no recovery against the defendant if the injuries were proximately caused solely by the conduct of a third person and the defendant was not negligent. The vice in such a charge is that the jury is in effect instructed that absence of negligence on the part of the defendant is necessary to absolve the defendant from liability, although the injuries may have been proximately caused by the negligence of another. In this ease the court erred in charging as follows: “ If you find that the injury was caused, actually caused, that the proximate and immediate cause of the injury was the conduct of the driver of the car, and that the street-car company is not guilty of any negligence in the matter at all, and that the immediate and proximate cause of the injury was the fault of the driver of the car, then I charge you that the plaintiff could not recover against the defendant in this case.”

2. In a suit for personal injuries based upon negligence alone, it is inapt to give in'charge section 4422 of the Civil Code (1910), as follows: “A physical injury done to another gives a right of action, whatever may be the intention of the actor, unless he is justified under some rule of law. The intention should be considered in the assessment of damages.”

3. The remaining grounds insisted upon show no error.

Judgments reversed.

Jenkins, P. J., and Bell, J., eoneur.  