52 Ga. App. 45 | Ga. Ct. App. | 1935
1. Under the act of 1888 (Ga. L. 1888, p. 39), embodied in the Code of 1933, § 95-1001, making counties “primarily liable for all injuries caused by reason of any defec
2. In the instant suit against a county, for personal injuries sustained in the fall of a truck through a county bridge over a creek, when one of the sills and some of the boards on the left side of the bridge broke under the weight of the truck, it was undisputed that the truck with its load of rosin and turpentine and the men thereon, including the plaintiff, weighed between 11,000 and 12,000 pounds. There was testimony, however, from one of the defendant’s witnesses, who was an inspector of the county bridges, that the county “had, a gr'eat deal of trouble because of
3. The following instruction was given to the jury: “It is for you to determine as to what kind of bridge should have been maintained by the defendant at the place of the alleged injury in the exercise of ordinary care and diligence. That is to say, it is for you alone to determine from the facts and circumstances of this ease whether it was the duty of the defendant to maintain at that point any bridge at all; and if you find the defendant was undeT a duty to maintain a bridge at said point, then it is for you to determine the kind, character, and load capacity of such bridge as the defendant in the exercise of ordinary care and diligence should have maintained.” Exception is taken to this charge, as erroneously leaving to the jury the question whether the county should have maintained “any bridge at all” at the place of its location, since, after determining to do so and thereafter building a bridge, it necessarily became the duty of the county to exercise ordinary care in keeping it in proper repair; and leaving to the jury the determination of “the kind, character, and load capacity of such bridge.” Under the preceding rulings and the testimony given that a bridge at the place of the accident had been already actually built, and the testimony offered in behalf of the plaintiff that for a number of years, and with the knowledge of the county, heavier loáds than that on which the plaintiff was riding were accustomed to pass over the bridge, it was not a question for the jury to determine whether or not it was the duty of the county to provide any bridge at all at the place indicated, and, if so, what
4. Other special grounds as to instructions, referring to the bridge as “small;” the use of the term “legal preponderance” of the evidence instead of “preponderance;” the statement of the elements which the jury should consider in determining the credibility of the witnesses; and the charge that, “if you should find from the evidence that the negligent acts of any agent of the plamtiff were not the proximate cause of any injuries received by the plaintiff, but contributed thereto,” then the jury should apply the rule of diminution of damages in decreasing the plaintiff’s recovery, the italicized portion of which it is contended expressed ap opinion that the acts of the truck driver were “negligent,” and invaded the province of the jury, — all fail to show any error or any prejudice to the plaintiff.
Judgment reversed.