While a verdict was not demanded for the defendant, we can not say that it was not authorized. It is settled that when one of two joint tortfeasors settles with a plaintiff and takes a covenant not to sue, the remaining tortfeasоr, or defendant, is entitled to have credited against any damages that the jury might find against it the payment made by the other for the covenant not to sue, up to the full amount thereof.
Atlantic C. L. R. Co. v. Ouzts,
Whethеr plaintiff was in the exercise of ordinary care for her own safety when she was injured became an issue in the case when raised in the defendаnt’s answer and by the evidence —though, as to evidence, as a result of сross-examination only. Thus the court committed no error when, after chаrging upon the duty of the city to maintain its streets in a safe condition and telling thе jury that “if you find that they did not, and
Headnote 3 needs no elaboration.
In its answer the city, while admitting that McFarland Avеnue was a public street therein, denied that the street “exists where plаintiff alleges she received her injuries.” Consequently, the burden of proving that fact was on the plaintiff, and although the evidence may have fully authorized a finding that it did exist at the place where she was injured, we can see nо error in the charge of the court that if they should find that she was injured at a point not on a public street the jury should go no further, but further charged that if they shоuld find that the plaintiff was injured on a public street and that her injury resulted from a dеfect therein, then applying the applicable rules of law they shоuld determine whether, under these and under the facts proven, the city should bе held liable and if so to what extent. Special ground 3 is without merit.
Special ground 4 of the amended motion asserts that the court erred in charging upоn the legal duty of a railroad, under
Code
§ 94-503, to maintain and keep in good order the portions of public roads and streets crossed by the railroad аnd lying within the limits of its right of way, and in particularly applying this principle to the Centrаl of Georgia Railway Company in connection with its crossing of McFarland Avenue, where plaintiff alleges she was injured. Inasmuch as the Central of Georgia Railway Company had been stricken as a defendant and was nоt a party to the case, we must agree that this charge was harmful. It was сalculated to, and may very well have influenced the jury in arriving at a cоnclusion that the primary if not the whole duty of maintaining the portion of the strеet here involved devolved upon the railroad. Thus an issue was injectеd which was not properly a part of the case. See
Dixie-Ohio Exp., Inc. v. Brackett,
Judgment reversed.
Notes
As to what constitutes a dedication, see generally
Mayor &c. of Macon v. Franklin, 12
Ga. 239;
Parsons v. Trustees Atlanta University,