Brown v. Mayor

• Decision Date: 06 November 1933
• Docket Number: No. 23369.,23369.
• Citation: 47 Ga.App. 820,171 S.E. 730
• Court: Georgia Court of Appeals
• Parties: BROWN. v. MAYOR, ETC., OF ATHENS.

47 Ga.App. 820

171 S.E. 730

BROWN.

v.MAYOR, ETC., OF ATHENS.

No. 23369.

Court of Appeals of Georgia, Division No. 2.

Nov. 6, 1933.

Syllabus by Editorial Staff.

Error from Superior Court, Clarke County; Blanton Fortson, Judge.

Suit by Mrs. Victor Brown against the Mayor, etc., of Athens. Judgment for defendant, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Affirmed.

Dorsey Davis, Carlisle Cobb, and Shackelford & Shackelford, all of Athens, for plaintiff in error.

Lamar C. Rucker, of Athens, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

1. Even if testimony was illegal and incompetent and should not have been admitted in evidence, the grounds of the motion for new trial complaining of its admission do not show that any objection to it was made in the trial court. "To make an objection to evidence, available in the reviewing court, it must appear that objection was made, and upon what grounds it was made, in the trial court." Norman v. McMillan, 151 Ga. 363 (4), 107 S. E. 325, 326; Central of Ga. Ry. Co. v. Anderson, 43 Ga. App. 189, 190, 158 S. E. 333.

2. There was no error in charging the jury that "the standard of care and diligence required by law of both the plaintiff and the defendant in this case is the same, and that is ordinary care and diligence, " and that "the standard of ordinary diligence is invariable." These were correct principles of law. Especially was this not error where the court immediately in connection therewith charged the jury that the degree of diligence in each case was a question for the jury under the circumstances of the case; that what is ordinary diligence must depend upon thecircumstances of each case; that It is a relative and not an absolute term; and that the care of a prudent man varies according to the circumstances dependent upon the degree of danger. Civil Code (1910), § 3471; Central R., etc., Co. v. Ryles, 84 Ga. 420, 430, 11 S. E. 499.

3. The plaintiff alleged that she was free from fault and that she was injured by reason of the defendant's negligence in maintaining a sidewalk three or four feet above the street level and not having barriers or railings around the same, or any light there at night so that persons would not fall or step off the same onto the street below. The defendant pleaded that it was not negligent; that it had taken all the precautions necessary; and that plaintiff's injuries were the result of her own failure to exercise ordinary diligence. Plaintiff testified that she did not know the sidewalk was so far above the street at the place where she stepped off, and that by reason of the fact that no light was there she could not see that there was a high step off at this place. If these facts were to be believed, the plaintiff was free from fault. There was evidence that this place was sufficiently lighted, so that plaintiff could have seen that the sidewalk was above the level of the street at this place, and that there were steps there that she could have used in getting into the street from the sidewalk. There was no specific plea averring that the plaintiff's injuries were due to an accident. The jury were instructed that if they believed that the injury to the plaintiff was caused by a pure accident and the plaintiff and the defendant were both free from fault, the plaintiff could not recover. It is contended that this charge was error because there was no plea of accidental injury and because under the facts of the case accident was not involved. There was...