Castleberry v. The City Of Atlanta

• Citation: 74 Ga. 164
• Parties: Castleberry. vs. The City of Atlanta.
• Decision Date: 30 September 1884
• Court: Georgia Supreme Court

74 Ga. 164

Castleberry. vs. The City of Atlanta.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Municipal Corporations. Streets and Sidewalks. Damages. Verdict. Attorney and Client. Practice in Superior Court. Charge of Court. Before Judge Dorsey. City Court of Atlanta. December Term, 1883.

Castleberry brought suit against the city of Atlanta, alleging that the defendant had lowered the grade of Peters street in front of his property, and had dug down the sidewalk, leaving the foundations of plaintiff's buildings exposed, making ingress and egress to and from the property more difficult, and injuring its value for rent, and damaging it; also killing his shade-trees. He laid his damages at two thousand dollars.

On the trial, the evidence on behalf of the plaintiff was, in brief, as follows: He owned the property alleged to be damaged. In 1S82, the city of Atlanta lowered the grade of Peters street and dug down the level of the sidewalk in front of plaintiff's property from eighteen inches to two feet On the corner was a store. In regard to the injury done to it, the plaintiff testified that the entrance was left about eighteen inches above the level of the sidewalk. "I think that store-house is worth a thousand dollars less than it was before; I think it would take a thousand dollars to repair it and place it back as it was." The brick wall on which the fence sat was undermined, and it was necessary to make additional steps to go into the residence. In his opinion, the other property was damaged one thousand dollars. The work rendered the property almost worthless for rent, and it has not been rented much since the work was done. About the time, or shortly after, the grading was done, plaintiff leased the property to a company for ten years, at an aggregate rental of $13,800. The rent began at $100.00 per month for a time, then rose until it reached $150.00. He had nothing to do with the sub-renting at the time of the suit. He sold a portion of the property to the East Tennessee, Virginia and Georgia Railroad, valuing it at $10,000.00. The railroad located its yardsand switches on the property bought by it, and the lease by plaintiff was made to a transfer company. Plaintiff has not done any work on the brick store, and will not have to make any repairs, under his lease, for ten years. Before the lease, he was getting for the brick store twenty dollars per month, and the property was worth in the aggregate for rent sixty-five dollars per month, exclusive of his residence, which was valued at twenty-five dollars per month for rent. Other witnesses testified to the digging down of the street, the lowering of the sidewalk and the injury to the property for rent, substantially as the plaintiff did. One witness testified that it would cost between eight hundred and one thousand dollars to put the brick building in repair as it was, and to put a solid foundation below the sidewalk, as it was before, and that the damage to the other building would be six or seven hundred dollars. He did not think that it was rented much for the last two or three years; did not know the cause, but supposed that it was because of the difficulty in getting to it. He had known it for sixteen or seventeen years before, and it was always rented. The injury to the fence required a brick wall, the cost of which would be two or three hundred dollars. He estimated the damage to the store at what it would cost to put it back as it was. Another witness testified that if the work was not done on the wooden store-house at once, it would not rent at all, but they were leased then, and the plaintiff had nothing to do with that work. Another witness, who testified to similar facts, was asked if he estimated the value of the property at what it would rent for, and answered in the affirmative. Then he was asked, " Suppose it rented for say $150.00 before this work was done and for $200.00 now, what would you say about the value of it?\'\' Answer: "I should think the increase in the value of property would be represented somewhat by the increase of rents in the city." On being recalled, the plaintiff testified that the digging down of the street and sidewalk had been donebefore the lease was made, and that he could have got more but for the grading.

The defendant introduced no testimony.

The jury found for the defendant. Plaintiff moved for a new trial on the following grounds:

(1.) Because the verdict is contrary to evidence, law and the principles of equity and justice.

(2.) Because the court charged as follows: " The plaintiff alleges further that the defendant negligently dug down the sidewalk in front of his property on Peters street, and that this damaged him one thousand dollars." The court, in a subsequent part of his charge, said, " If the plaintiff, by the evidence, has shown to your satisfaction that he owned the property in question, and the defendant, by its servants and agents, in the manner as charged in the declaration, has damaged said property, as charged, etc., you will be authorized to find for the plaintiff." The error complained of here is that the court told the jury that the plaintiff had charged that the defendant negligently dug down the street; and if the evidence showed that it was done, as charged, then plaintiff might recover. The plaintiff did...