60 Ga. 473 | Ga. | 1878
This was an action on the case for damages for injuries to the person of the plaintiff grounded on an alleged unlawful and negligent grading of the streets of Atlanta. The case was before us on demurrer to the declaration, and it was then held that the declaration was good, because the declaration alleged that the city was negligent in constructing the embankment where plaintiff’s horses ran away with the buggy and hurt him, in not providing it with necessary railings or other means of protection, and in not keeping the street in safe condition, and that such negligence was the real cause of the injury. 59 Ga., 544. When tried regularly before the jury, on its return to the circuit court, the jury found five thousand dollars for the plaintiff; the city moved for a new trial, the court granted it on all the grounds alleged in the motion, and the plaintiff appealed to this court by writ of error.
The question is, did the court err in granting the new trial on any ground taken in the motion therefor ?
But in the bill of exceptions error is assigned that the court held and ruled in granting the motion for a new trial) that the city had a right to adopt a general system of grading and draining the streets, and if this street was so drained and graded, that the plan being in the discretion of the city council as the law-making power of the city, the plaintiff could not recover; and again, that the city could not erect railings, having no right or power to do so, and if they could, and had done so, then the plaintiff must show that such barriers would have prevented the injuries of plaintiff, which in the case of a run-away of the horses the court thought could not be proved; and also, that in a case where a swingle-tree becomes detached, as in this case, the plaintiff cannot recover damages.
In our judgment, this ruling is too strong. There might be a case where the swingle-tree did become detached, and the horses did run away, and where the city would be liable. Concede that this embankment was not so wide as it is, and much higher from the level of the natural ground, and an accident happened and horses ran away, and the faulty plan or structure of the grading was the real cause of the damage, there could be a recovery, notwithstanding the running away of the horses. One object of good streets and roads is to protect against accidents. The stoeet should be reasonably safe for ordinary travel, including such accidents as might, without fault on the part of the traveler, befall him. There might be cases of mutual fault and contributory negligence, and modification of damages to suit the respective laches or fault of either side. We do not mean to say that
Judgment affirmed.