45 Ga. App. 847 | Ga. Ct. App. | 1932
Mrs. Maude Hawkins brought suit against the City of-Atlanta for personal injuries alleged to have been received by her in stepping into a water-meter of the city on the eastern side of North Boulevard, immediately north of Greenwood Avenue, the same being just east of the eastern curb-line of North Boulevard. .She set up that the water-meter was defective, and that when she stepped upon the cap or lid thereof the meter careened and gave way, permitting her left leg to go into the opening thereunder up to the point of her knee, and that she was thereby injured in the manner alleged. She set up that the cap or lid of the meter was broken and defective to such an extent that it would give way when any a-mount of weight was placed thereon, that this defective condition had existed for a month or more, and that the city knew thereof or by the exercise of ordinary care should have known of the defect. She amended her petition by setting up that the meter was also defective in that the flange or outer edge of the rim of the barrel supporting the cap of the meter was broken for a distance of about four inches, which caused the cap or lid to give way when any weight was placed thereon. The city denied the material allegations of plaintiff’s petition. On the trial plaintiff introduced evidence tending to support the allegations of her petition. The jury returned a verdict in her favor. The court overruled the city’s motion for a new trial, and to this judgment the city excepted.
The testimony of the plaintiff that she stepped in the second water-meter north of Greenwood Avenue was objected to on the ground that the petition alleged that the plaintiff stepped in the water-meter “immediately” north of Greenwood Avenue, that “immediately,” in regard to place, means that nothing intervenes, that the suit was based on alleged negligence of the city as to the defec
Furthermore, on cross-examination the plaintiff testified that she stepped in the second water-meter, and this testimony was not objected to by the city. Therefore, under repeated rulings of this court and of the Supreme Court, the refusal to rule out the evidence offered on direct examination was not reversible error. Mathews v. Richards, 19 Ga. App. 489 (2) (91 S. E. 914), and cit.; L. & N. R. Co. v. Lovelace, 26 Ga. App. 286 (3) (106 S. E. 6); Simmons v. State, 34 Ga. App. 163, 164 (128 S. E. 690).
The court did not err in admitting in evidence the notice of claim served on the city by the plaintiff for the reason urged that there was no negligence set out therein, and that the only reference to the water-meter was to the lid. Section 910 of the Civil Code of 1910, requiring the presentation of a written notice to the governing authorities of a municipality before suit can be brought, is in derogation of the common law and must be strictly construed against the city. The act does not contemplate that the notice shall be drawn with all the technical nicety necessary in framing a petition. The purpose of the law is simply to give the municipality notice that the claimant has a grievance against it. A substantial compliance with the act is all that is required; and when the notice describes the time, place, and extent of the injury, it will be suffi
Parol evidence is not, unless proper foundation be first laid, admissible to prove either affirmatively what books of account or private writings do contain, or negatively what they do not contain. Holliday v. Griffith, 108 Ga. 803 (34 S. E. 126); Aspinwall v. Chisholm, 109 Ga. 437 (34 S. E. 568); Nix v. Armour Fertilizer Works, 40 Ga. App. 745 (3) (151 S. E. 561). It follows that it was not error for the court to reject the testimony of the witness for the city to the effect that he had examined certain water-meter books k.ept by the city water-meter inspectors and that these books did not show that any repairs had been made on the water-meter involved in this case. These books were not such public records as would bring the evidence of this witness within the principles announced in Dixon v. Patterson, 135 Ga. 183 (69 S. E. 21); Compton v. Fender, 132 Ga. 483 (64 S. E. 475); Wilson v. Wood, 127 Ga. 316 (56 S. E. 457); Vizard v. Moody, 117 Ga. 67 (43 S. E. 426); Greenfield v. McIntyre, 112 Ga. 691 (38 S. E. 44); Hines v. Johnston, 95 Ga. 629 (23 S. E. 470); Cowan v. Corbett, 68 Ga. 66; Whitaker v. State, 11 Ga. App. 208 (75 S. E. 258).
It was not error for the court to refuse to admit in evidence an ordinance of the city which provided that “Pedestrians shall cross streets only at intersections or cross-walks, unless otherwise permitted by proper authority.” The injury complained of by the plaintiff was not caused by any violation of this ordinance, but was caused by the defective condition of the water-meter. The water-meter was not in the street, but was in a grass-plot between the paved portion of the sidewalk and the curb. Plaintiff was upon this grass-plot when she was injured, and whatever she may have intended to do with respect to going out into the street had nothing to do with her injury.
It was not error to charge the jury that the city would be
The court did not err in charging the jury that if the plaintiff should recover, it would be necessary for her to recover on the grounds of negligence set out in her petition as amended, and also on account of negligence at substantially the place designated in her petition. The evidence of the witness Adams was positive that the plaintiff was hurt at the first water-meter, and this charge did not authorize the jury to find in favor of the plaintiff on a different basis of negligence from that sued on. The judge expressly limited a recovery by the plaintiff to the grounds of negligence alleged in her petition.
The city does not insist upon the general grounds of its motion for new trial, and these grounds will be treated as abandoned.
The remaining grounds of the motion for a new trial do not show error.
Judgment affirmed.