Chapman v. The Mayor

• Decision Date: 31 January 1876
• Parties: Asa W. Chapman, plaintiff in error. v. The Mayor and Council of The City of Macon, defendant in error.
• Court: Georgia Supreme Court

55 Ga. 566

Asa W. Chapman, plaintiff in error. v. The Mayor and Council of The City of Macon, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Municipal corporations. Streets. Notice. Non-suit. Before Judge Hill. Bibb Superior Court. October Term, 1875.

*Reported in the opinion.

Rutherford & Rutherford, by Jackson & Lumpkin, for plaintiff in error.

R. W. Jemison, for defendant.

Jackson, Judge.

Chapman alleged that in passing the sidewalk on third street in Macon, in the forenoon, he fell into an opening made by cellar doors in the sidewalk, and was thereby badly injured, and brought suit against the city. He proved on the trial that a few moments before the accident he had procured some eye water from Massenburg's drug store, and had gone to his place of business and applied the eye-wash, and on his return, the eye smarting, he had his handkerchief over it, the other eye not affected, being kept by him on the outer edge of the sidewalk, so as to keep on it, thinking he would thereby be safe; that when he passed over the sidewalk a few minutes before the doors were clown, but on his return one of them was up and open, and stepping on that which was down nearest to him he made another step, upon the opening made by the other door or leaf of the door, and fell in and was hurt. He amended his declaration, and offered to prove that the said cellar door had been frequently left open during the day and night for a long space of time previous to the injury complained of by the plaintiff, and of all which the defendant had notice. The amended declaration was sufficient to let in all this evidence, except perhaps the fact of the door being left open at night. The court allowed the amendment but rejected the evidence because it was immaterial. It was further proven that the doors had been made in the sidewalk and used for forty years, and that plaintiff had regularly passed over the sidewalk to and from his meals daily for a long time.

The court non-suited the plaintiff, and this is the errorassigned.

*1. It is unquestionably the duty of the city of Macon to keep its streets and sidewalks in such a condition that persons passing over them may have safe transit. They are so empowered by the charter, and the right of taxation is conferred to enable them to do so: 2 Dillon, sections 778, 789, and cases cited; Code of city of Macon, sections 48, 43, 144, etc.; 39 Georgia Reports, 728. In this case, it appears that the city permitted the sidewalk to be encroached upon by having openings into a cellar below through the sidewalk, with folding doors communicating thereto, and the fact that these folding doors were habitually, or frequently left open, was offered to be proven and the testimony rejected after amendment of the declaration, because, in the opinion of the court, it was immaterial, that is, because it could not alter the question made on the nonsuit. We think that the city should keep its sidewalks free from danger to those who may pass over them, and that an opening in the sidewalk frequently made by leaving the cellar doors open, and all with the knowledge of the city, would make it liable to one injured by falling into the door thus left open, if such an one used due caution himself. If it were night and no lights to warn the passer were put near the opening, if no railing were there to prevent accident, and the walker should fall into the opening and be hurt, the city would unquestionably be liable, because the person injured would have good right to think he was safe while on the sidewalk, and could not see the danger. In the case at bar the plaintiff was passing the sidewalk in daylight, and...