158 Ga. 792 | Ga. | 1924
One ruling made by the Court of Appeals was: “While a municipal corporation may not fail in its duty to keep its sidewalks in repair by merely permitting them to exist with certain irregularities upon the surface of the pavement) yet where there is a defect, such as appears from the evidence in the case under consideration, which consists of a raised and irregular surface upon the sidewalk, caused by the root of an adjacent tree growing under the sidewalk and disarranging the tiles and causing one of them to project above the level of the sidewalk, which condition has been allowed to remain for a period of years, it is a .question of fact for the jury as to whether or not the city in maintaining the sidewalk in such condition was negligent.” In the petition for certiorari this ruling was alleged to be erroneous because: “There was no legal duty resting on the municipal corporation-to keep its sidewalks free from the defects which existed in this case, and its failure to keep its sidewalks free from such defects was not negligence, this as a matter of law, all the facts of this case considered, and the Court of Appeals erred in holding that it was a question for the jury in this case to say as to whether or not this was negligence on the part of the municipal corporation.” In a case of this kind it should be borne in mind that negligence of the defendant is one question and exercise of care by the plaintiff to avoid injury from the defendant’s negligence is another, both of which enter into the ultimate question of the defendant’s legal liability for the alleged injury. The assignment of error relates directly to the first. In this State the statutes declare that municipal corporations are liable “for neglect to perform . . their ministerial duties.” Civil Code (1910), § 897. ' Also: “If a municipal corporation has not been negligent in constructing or repairing the same, it is not liable for injuries resulting from
It is stated in 8 McQuillin on Municipal Corporations (Supp.), 8402, § 2785: “Slight or minor defects in sidewalks resulting in injury, generally speaking, do not establish municipal negligence.” In Keen v. City of Mitchell, 37 S. D. 247 (157 N. W. 1049, L. R. A. 1916F, 704), it was held that: “An open drain across a highway, 7 or 8 inches deep at the lowest point, and sloping gradually upwards from the center so that it covers 12 feet at the top, is not such a defect as to render the municipality liable for injuries resulting to one jostled oil a wagon when the front wheels go into the drain.” The case was on appeal from the trial court, in which the judgment for the plaintiif was reversed on the ground that the city was not negligent, because the depression in the street was of such a character that the city officials in charge thereof could not have reasonably foreseen or apprehended the probability of the happening of the accident to plaintiif by reason of the depression. In' the course of the opinion it was said: “Where an injury is alleged to have been occasioned by a defect in a street, the inquiry should be, not was there some defect in the street? but was the street, in the condition in which it is proven to have been, in a reasonably safe condition for travel in the ordinary mode at the time the accident happened? and was the accident the natural
It will be observed that the above decision had reference to a defect in a street where an injury resulted to a person riding in a vehicle, but it was recognized that the principles applied would apply also in cases of an injury to pedestrians where the defect was in the sidewalk. Some of the cases cited in the opinion were of that character. In Terry v. Village of Perry, 199 N. Y. 79 (92 N. E. 91, 35 L. R. A. (N. S.) 666, 20 Ann. Cas. 796), it was held that “A municipal corporation is not liable for injury to a pedestrian, caused by his falling on a sidewalk because of a depression due to the setting of one edge of a concrete square in the walk 1 -% inches below the level of the adjoining square, although one or two persons had tripped on the unevenness before, and one of the trustees of the municipality had slightly turned his ankle at the spot, and reported the fact to the board of trustees.” In the opinion the language quoted as above from Beltz v. Yonkers, was set forth, and the principles therein announced were applied. Another case cited and applied was Butler v. Oxford, 186 N. Y. 444 (79 N. E. 712). In that case the facts were that “the surfaces of a stone and an adjoining dirt sidewalk were not flush at their junction, the surface of the former rising above that of the latter by a distance of about 2-% inches in the center of the walk, and about 5 inches on the outer edge thereof. The plaintiff, in passing over the dirt walk upon the stone walk in the nighttime, stumbled against the projecting edge of the stone, fell and met with the injury for which the action was brought.” It was held that the defect was too insignificant for its existence to be the foundation of a liability upon the part of the city for an injury resulting to a pedestrian who received -a fall on account of the defect. In City of Richmond v. Schonberger, 111 Va. 168 (68 S. E. 284, 29 L. R. A. (N. S.) 180), it was held: “A municipal corporation is not liable for injury to a pedestrian who, in attempting to cross a street, stumbles and falls because of a piece of stone projecting 2 inches above the level of the crosswalk, where the walk is constructed of two level strips of paving stone, with the inter-
In City of Lexington v. Cooper, 148 Ky. 17 (145 S. W. 1127, 43 L. R. A. (N. S.) 1158), it was held: “A niche in a sidewalk to enable it to pass a standing tree, which, after the tree is removed, is filled with dirt and sodded, so as to leave the surface 2-% inches below the surface of the walk, is, as matter of law, not a defect which will render the municipality liable in case a pedestrian slips or stumbles over the unevenness and falls to his injury.” In the course of'the opinion it was said: “Under the facts, the trial court erred in not granting defendant’s motion for a peremptory instruction. The city is not a guarantor of the safety of pedestrians upon her sidewalks. It is enough if the streets are kept in a reasonably safe condition for those exercising ordinary care for their own safety. Customarily, of course, the question of whether a sidewalk or street is in an ordinarily safe condition is for the jury; and yet it would be manifestly begging the question to say that, no matter how slight the inequality of surface, or how immaterial the obstruction, the case should go to the jury. Covington v. Belser, 137 Ky. 125, 123 S. W. 249. In the case of Louis
In the case of City of Atlanta v. Bellamy, 72 Ga. 420, a verdict was returned for the defendant. The plaintiff’s motion for a new trial was granted, and the defendant excepted. The judgment of the trial court was affirmed on the ground that a discretion was vested in the trial court with which the Supreme Court would not interfere unless the discretion was palpably abused. The statement of facts contains the following: “On the trial, it was proved that plaintiff stepped into a depression or hole in the sidewalk, while passing along, about dusk in the evening, fell and was injured. The evidence as to -plaintiff’s habits of sobriety and the nature and extent of the injury was conflicting. As to the character of the hole into which plaintiff stepped, he testified as follows: ‘The hole in the sidewalk, which caused my fall, was about four inches wide, I think, and was as long as the flagstone was wide, say about eighteen inches long, and I should judge it was several inches deep. It was about dusk when I stepped on the edge of the hole, and I did not see the hole. I don’t think I ever saw the identical hole before. At the time I fell, I was walking in ordinary way.’ Lynch, a witness for the plaintiff, described it as follows: ‘The hole had been there seven or eight months before the Saturday evening on which I saw a man fall and two negroes pick him up. A common brick would more than fill up the hole.
In City of Atlanta v. Brown, 73 Ga. 630, the verdict was in favor of the plaintiff, and the defendant’s motion for new trial was overruled. The ground of negligence alleged was stated by the court as follows: “The plaintiff brought suit to recover damages from the City of Atlanta for a personal injury, which she alleged was done her by reason of a fall, while she was walking, with all care and caution, on the north side of East Mitchell street in said city; that this fall was on a rough sidewalk, which had been made of bricks, and in consequence of the rough and broken condition of the same and tlie steep grade of an adjoining stone pavement; that the bricks which composed the said sidewalk had been torn up and loosened from their positions, and it was in an unsafe condition; that the city, though knowing at that time, and previous thereto, the condition of the sidewalk, had, through gross negligence, failed to repair it, so as to make it a reasonably safe way for persons to pass oyer.” The judge stated in the order overruling the motion for new trial: “That, in his judgment, the alleged defect was or should not be an actionable defect, as to require the city to remedy such slight imperfections in the side
Another ruling made by the Court of Appeals was: “A person injured by stumbling over a raised and displaced tile projecting above the level of the sidewalk, over which such person, who had the capacity to see, was traveling in broad daylight, is not barred from a recovery upon the. ground of contributory negligence, where it appears that such defective condition was to some extent obscured by a shadow, and that such person had no actual knowledge of the existence of such defect in the sidewalk.” In the petition for certiorari that ruling was alleged to be erroneous because: “There is no sufficient evidence that the defective condition was to some extent obscured by a shadow, and there is no evidence that Mrs. Glogauer had no actual knowledge of the existence of such defect, the evidence showing that she must have
Another ruling made by the Court of Appeals was: “The plaintiff, a widow at the time of the trial, although a married woman at the time of the injury and the filing of the suit, who was seeking to recover for personal injuries alleged to have been caused by a defect in a sidewalk, was entitled to recover for any damage which she might have sustained by reason of impaired earning capacity, since it appears that no objection was urged that she could not recover for such item of damage in the pending suit. An instruction by the trial judge that the jury must compute such damage from the time of the trial was not error as against the defendant. The evidence made such an issue; and the charge was not further objectionable upon the ground that it was not adjusted to the evidence.” In the petition for certiorari this ruling was alleged to be erroneous because: “The objection made in the motion for new trial was that the trial judge should
Another ruling made by the Court of Appeals was: “The fact that many other people had safely passed over the same sidewalk when in the same condition as when the plaintiff was injured, and the fact that no claims for injuries to persons by reason of defective sidewalks had been filed against the city prior to the plaintiff’s injuries and while the sidewalk upon which the plaintiff was injured was in the same defective condition, are immaterial to throw any light upon the question of ordinary care upon the part of the city, and were in no wise relevant to the issues in the case.” In the petition for certiorari this ruling was alleged to be erroneous because: “The Court of Appeals erred in holding, 1st, That the fact that many other people had safely passed over the sidewalk where the injury occurred, when in the same condition as when the plaintiff was injured, was immaterial and irrelevant, the contention of petitioner being that evidence showing or tending to show that the sidewalk in question and under the same conditions was ordinarily safe for pedestrians was relevant and admissible ; and, 2nd, In holding that the fact that no claims for injuries to persons by reason of defective sidewalks had been filed against the city prior to plaintiff’s claim Was immaterial and irrelevant, the contention of petitioner being that all such evidence was relevant
Another ruling made by the Court of Appeals was: “Where two witnesses have made conflicting statements in their testimony, it is not error for the court to refuse to allow one of the witnesses, upon cross-examination, to state whether or not the other witness had testified correctly.” In the petition for certiorari this ruling was alleged to be erroneous because: “While the general statement of the law as made in this paragraph may be true, yet the Court of Appeals erred in applying it to the facts in this ease, because the plaintiff in her direct examination had sworn that no other woman was with her at the time of the accident; following after her testimony a witness introduced in her behalf had sworn that another woman was with her at that time; thereafter, upon the plaintiff being recalled in her own behalf, she was on cross-examination asked if her witness had been mistaken in stating that another woman was with her at the time of the accident; the trial judge ruling out this question on the ground, not that it was trying to impeach the testimony of the other witness, but that this matter had already been gone into, whereas it had not been gone into in the light of this testimony of plaintiff’s witness that there was such another woman; and the Court of Appeals erred in not holding that this question was relevant, material and admissible.” While the trial judge put his ruling upon the ground that this matter had been previously gone into and while this ruling was exclusively put upon that ground, we do not think that a new trial ought to be granted on this ground, because it is not proper to undertake to prove by one witness that the testimony of another witness was not correct.
The last assignment of error relates to the sufficiency of the evidence to support the verdict; but as the judgment affirming the judgment of the trial court will be reversed and another trial will be necessary, at which the evidence may not be the same, no ruling will be made upon this assignment of error.
Judgment reversed.