City Council of Augusta v. Hammock

• Decision Date: 07 March 1952
• Docket Number: No. 2,No. 33717,33717,2
• Citation: 69 S.E.2d 834,85 Ga.App. 554
• Parties: CITY COUNCIL OF AUGUSTA v. HAMMOCK
• Court: Georgia Court of Appeals

Page 834

69 S.E.2d 834

85 Ga.App. 554

CITY COUNCIL OF AUGUSTA v. HAMMOCK.

No. 33717.

Court of Appeals of Georgia, Division No. 2.

March 7, 1952.

Syllabus by the Court.

1-3. The assignments of error upon the charge of the court in the special grounds of the motion for a new trial are without merit for the reasons stated in the opinion.

4. The jury was authorized to find that the walkway on which the plaintiff was walking when the limb fell from a tree bordering the walk and struck her on the head did not traverse a park, but was a part of the street; and the jury was further authorized to find that the limb was decayed and had existed in such a state of decay for a sufficient length of time for the city, in the exercise of ordinary care, to have discovered and removed it.

Congdon, Harper & Leonard, Augusta, for plaintiff in error.

Peebles & Burnside, Augusta, for defendant in error.

CARLISLE, Judge.

This is the second appearance of this case in this court. When the case was here before upon exception by the plaintiff to the sustaining of the defendant's general demurrer, this court held [83 Ga.App. 217, 63 S.E.2d 290]: 'A petition alleging liability on the part of a municipality by reason of the falling from a tree of a dead limb, overhanging a sidewalk, which limb had been dead and in a dangerous condition for several months before the jury complained of, and alleging that the city knew of the condition of the limb or should have known of it by the exercise of ordinary care, stated a cause of action good as against a general demurrer.' The material allegations of the petition are recited in the report of the case, supra, and need not be reiterated here. Upon the trial of the case the jury returned a verdict in favor of the plaintiff for $750. The defendant's motion for a new trial, based on the usual general grounds and five special grounds, was overruled and it excepted.

1. In special ground 3 of the motion for a new trial, error is assigned upon the following portion of the court's charge--'If, on the other hand, she was injured in a public street, then the municipality would be liable, under the rules of law I will presently give you in charge'--on the ground that this portion of the charge was 'argumentative, misleading, and confusing to the jury, in that it suggested early in the instructions that the municipality would be liable for an injury in a public street irrespective of notice or negligence.' The language of the court here complained of was immediately preceded by the following charge: 'If the injury occurred in a public park, as I will define to you presently, then the municipality would not be liable, regardless of any question of negligence'; and in the language of the very sentence complained of the court qualified its instruction that the municipality would be liable for an injury in a public street with this phrase, 'under the rules of law that I will presently give you in charge';and later in the charge the court laid down the rules of law with reference to the obligations and responsibilities of the municipality in the maintenance of its streets by instructing the jury: 'I charge you * * * that a municipal corporation is not an insurer against accidents upon its streets and sidewalks * * * a municipality is charged with the exercise of ordinary care and diligence to keep its sidewalks in a reasonably safe condition for the ordinary use of pedestrians. Whether that was done at the time and place under investigation here is one of the issues you are called upon to determine from the evidence submitted for your consideration. I referred to the expression 'ordinary care and diligence.' I charge you that ordinary care and diligence on the part of a municipality is that care which every prudent municipality takes to keep its sidewalks in a reasonably safe condition for ordinary use by pedestrians. I further charge you that failure to do so is termed in law ordinary neglect. * * * If you find that the defect, as contended by the plaintiff, existed, then the next question for you to determine is whether or not the city had notice of the defect, actually or by inference, prior to the alleged injury. Notice by inference is where the defect has existed for a sufficient length of time for the notice to be inferred. Should you find that the municipality had knowledge of the alleged defective condition, I charge you that such knowledge by the city must have been for such time before the alleged injury for the municipality to have remedied the alleged defect after receiving such notice.' The principles of law involved in a case must necessarily be given in charge to the jury seriatim. 'The court can not crowd every legal principle involved in a case in a separate and distinct paragraph.' See Edwards v. Atlanta B. & C. R. Co., 63 Ga.App. 212, 224, 10 S.E.2d 449, 456. We think, therefore, that, in view of the charge as a whole upon the question of a municipality's liability for injuries sustained on its streets and sidewalks, as quoted above, the portion of the charge complained of is not subject to any of the criticisms lodged against it in this special ground.

2. In special ground 4, error is assigned upon the following portion of the court's charge--'If, on the other hand, you find from the evidence that the walkway on which Mrs. Hammock [the plaintiff] claims to have been injured was a street in the sense that it was a thoroughfare used by pedestrians for travel, as distinguished from seeking recreation, then I charge you it would be a public street'--on the ground that the charge was 'erroneous and not sound as an abstract principle of law.' Immediately preceding the instruction complained of, the court charged: 'Where a city maintains a park primarily for the use of the public, and intended as a place of resort for the pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the non-formance of the duties of the officers, agents or servants of the city in respect to keeping the park safe for use by the members of the general public. Therefore, if you find from the evidence that this was a public park, that would complete your deliberations, and your verdict would be for the defendant.' Viewed in its context, namely, in connection with the definition of a park, which is taken directly from, and in the exact words of, Cornelisen v. City of Atlanta, 146 Ga. 416, 91 S.E. 415, the portiion of the charge complained of states a correct principle of law. Had the defendant wished an elaboration upon the court's definition of a street, a timely, written request therefor should have been presented to the trial court. See, in this connection, on the subject of streets and their ornamentation, City of Albany v. Lippitt, 191 Ga. 756, 763, 764, 13 S.E.2d 807. There is no merit in this ground of the motion for a new trial.

3. In special ground 5, error is assigned upon the following portion of the court's charge--'Gentlemen of the jury, I charge you that a municipality is charged with the exercise of ordinary care and diligence to keep its sidewalks in a reasonably safe condition for the ordinary use of pedestrians'--on the ground that it was 'argumentative, confusing and misleading to the jury for the reason that defendant adduced evidence to show this sidewalk ran through a park and if that were true, a municipal corporation could not be liable for failure to maintain it.' This portion of the charge is not erroneous for any reason assigned. The evidence was in conflict as to whether the sidewalk on which the plaintiff was injured traversed a park. The court charged the principles of law which would be applicable if the jury should find that the injury was sustained in a park. It was also necessary under the evidence to charge those principles of law which would be...