Daniels v. Intendant & Wardens

55 Ga. 609 | Ga. | 1876

Jackson, Judge.

The plaintiff, in crossing the lower bridge over the Oconee at Athens, in a covered wagon, was seriously injured by the backing of his horse from the bridge off a contiguous embankment, precipitating the wagon and horse some fifteen to twenty feet below. There was no railing on the embankment to prevent such a casualty. The bridge and embank-meat were within the corporate limits of Athens with streets on both sides of the bridge. He brought suit agaiiist the town of Athens to recover damages for loss of property and personal injuries received in the fall. The town pleaded that the bridge and embankment'were the property of the county, and the county was bound to repair and was liable for the injuries, and also that plaintiff’s negligence in driving a bad horse, prone to backing when in harness, caused the casualty. The jury found for the defendant, and a motion was made for a new trial on errors in the charge, and because the verdict was contrary to the law and the evidence.

1. The court charged, in substance, that if the embankment was contiguous to the bridge, and necessary to enable teams and wagons to cross the sto’eam over it, it was part of tlie bridge, in law, and this is complained of. We thiuk this principle is good law. The bridge would be useless without access to it, and the good sense of the rule is supported by authority. Indeed, in England the distance wherein such access would be considered part of the bridge has been held to extend three hundred feet. In this country this rule is, perhaps modified, but it is always and every where held, so far as we have examined, that what is reasonably nécessary by way of elevating the ground to roll the wagons up to the bridge, is part of the structure, and, as the court below charged, carries the title to the main bridge over the abutment or embankment. See Shearman and Redfield on Neg., sections 252, 253, and cases there cited.

2, 3. The court further charged to the effect that if this bridge belonged to the county, though in the corporate limits of Athens, the county and not the town was liable for the injury, being bound to repair it. The evidence preponderates that the bridge belonged to the county. Indeed, it seems that everything the town ever did in regard to this bridge was in subordination to the county. True, they both contributed to build and rebuild it from time to time, and the last time it was rebuilt, in 1869, the county seems to have expended only $500 00 towards the work, and the town issued bonds to pay for the structure. But the county used the old timbers, and prescribed the terms on which the town should rebuild it. But the coui’t certainly charged correctly, and if the testimony had been conflicting, we would not have interfered with the finding of thejuxy thereon. If the bridge belonged to the county, the towxx was not liable, if this embankment was part of the bridge in a legal view; and such was the essence of this charge: Shearman & Redfield, section 150; Dillon on Mun. Cor., sections 789, 579, note.

4. We think the fact that the town used the bx-idge and voluntarily worked upon and repaired it and the embankment, did not divest the county of the title and the right to control the bridge, and the consequent duty to repair it and the embankment contiguous and necessary to its use; nor do these facts by any construction that we are aware of,, amount to a dedication from the county to the town by user ; if, indeed, there can be such dedication from county to town, and we see no error in the charge and finding on this point: 2 Dillon, 500, 501, 498.

5, 6. Now, if the embankment where the accident occurred had been part of the streets of Athens and not of the bridge, then Athens would have been legally bound to repair, and liable to the plaintiff; and the court so charged the jury. But they found the embankment, where the aeaident happened, within fifteen fed of the bridge, to be a part of the bridge and not of the street, and we cannot say that the evidence does not support the charge.

7. On the question of negligence the coux’t chax-ged correctly, as far as it went, to the effect that if the plaintiff’s negligence in driving, or the condition of his horse, caused the accident, he could not recover: Shearman & Redfield, sections 417, 416, and notes 33; 34. If plaintiff desired the law in respect to contributory negligence to have been given in charge, he should have asked for it in writing. At all events, he should have called the attention of the court thereto. But we think the case turned on the other points.

8. This case, precisely as made here on the pleadings, and substantially on the evidence, has been here before: Daniels vs. Mayor, etc., of Athens, 54 Georgia Reports, 69. The law in regard to the main questions involved was then ruled by this court, and the ruling here was substantially carried out in its charge by the court below. It would require a very strong case to induce us to reopen the controversy.

Let the judgment be affirmed.