Wilson v. City of Atlanta

63 Ga. 291 | Ga. | 1879

Bleckley, Justice.

1. The bill of exceptions sets out that at the fall term, 1878, of the superior court, the case (naming it) was tried, and the jury found a verdict for the defendant, his honor, George Ilillyer, judge of said court, then and there presiding, whereupon the plaintiff moved for a new trial, etc. The fair construction of this language is that the motion was made at the same term at which the trial was had ; and as it does not affirmatively appear elsewhere in the bill of exceptions, or in the transcript of the record, that the fact was otherwise, the motion will be treated in the supreme court as having been made in due time.

2. While, in respect to its streets, a city and a passenger upon them are alike bound to ordinary diligence, yet the diligence of the former has relation to keeping the streets in safe condition and repair, and that of the latter has relation to walking, riding or driving along them in proper manner and with due caution. Ordinary diligence on the part of the city is that care which every prudent municipality takes to put its streets in safe order and keep them so ; on the part of the passenger of average powers and capacity, it is that care which every prudent person tabes to pass over them without sustaining injury or inflicting any. The duty of maintaining a street in a fit condition for safe use, though limited to ordinary diligence in those on whom that duty is cast, involves a very different measure of vigilance in foreseeing danger, from that which a passenger is bound to exercise. It follows that the passenger may know the street or the locality, and yet be free from negligence, while the city; on the same state of facts, might be chargeable with negligence — even with gross negligence, In no respect is the vigilance obligatory upon the one a measure of that which is obligatory upon the other. Each is bound to the diligence appropriate, not to a common duty, but to a separate and distinct duty appertaining to a separate and distinct class. The passenger does not undertake to serve the city or represent it, and upon him rest none of its burdens ; he is to act the part of a prudent, discreet traveler, not the part of a prudent, discreet corporation. If he has special knowledge which ought to heighten his care above that which would be usual and reasonable in those less informed, his conduct should conform to that of ordinary prudent men possessed of like information and placed in like circumstances. Ordinary diligence involves a reasonable use of all the resources, mental and physical, which are at the passenger’s command.

In charging the jury, the presiding judge seems to have had some such theory present to his mind as that ordinary diligence implies equal diligence. This is far from correct when the diligence of different classes of persons is under comparison, though it is correct when that of different persons of the same class is being compared. The person whose duty it is to furnish and repair a road for another to travel upon is related to that road and to the man who is to travel upon it, just as another person whose duty is to furnish and repair' a similar road for a like purpose in respect to another traveler, is related to the latter road and to the traveler upon it, and both road-makers are alike bound to ordinary and equal diligence. And so the two travelers are -bound to ordinary and equal diligence, as a general rule. But ordinary diligence on the part of roadmalcers, may be more or less than ordinary diligence on the part- of travelers ; indeed, the diligence appropriate to the one class is so different from that appropriate to the other, that there is difficulty in comparing them, one being the diligence of preparation, and the other the diligence of use.

3. There can be no doubt that while the city was bound to observe its own proper measure of diligence, yet, if it failed, and the plaintiff could nevertheless have avoided the consequences by using ordinary diligence on his part, and he likewise failed, he cannot recover.

4. So, if the consequences to the plaintiff would, under all the circumstances, have been the same had the city not been negligent, he cannot recover though he be in no default.

This case has been here twice before : 59 Ga., 544; 60 lb., 473. What we have now ruled will be found sufficient to correct such error as the charge of the court contains ; and the three decisions, read together, will probably furnish enough law to dispose of the litigation, with the aid of a jury to settle the facts.

Judgment reversed.