City Council Of Augusta v. Tharpe

Citation38 S.E. 389,113 Ga. 152
Decision Date28 March 1901
CourtSupreme Court of Georgia

38 S.E. 389
113 Ga. 152


Supreme Court of Georgia.

March 28, 1901.


1. On the trial of an action to recover damages for personal injuries received by one using the streets of a city, in consequence of an obstruction therein, the evidence showing not only that the plaintiff received a serious hurt, but that he suffered much pain, a verdict for $300 cannot be set aside as excessive.

2. Though a particular instruction, taken alone, may be open to the criticism that it required a given qualification, yet, where it plainly appears that elsewhere in the charge this very qualification of the doctrine laid down in such instruction was so distinctly and clearly stated as that the jury were not misled as to the true law, the giving of the instruction will not require the granting of a new trial.

3. It is the duty of the authorities of a city to keep and maintain the sidewalks thereof in a reasonably safe condition for public use, and this duty is not performed by keeping in such condition that part of the sidewalk only which is most generally used.

4. Whether a wire stretched along the outer edge of a sidewalk, about four feet from the ground, and fastened to two poles, by contact with which the plaintiff was injured, was an obstruction to the safe use of the streets, was a question of fact for the jury to determine, under proper instructions from the judge.

5. Relatively to the city, it was not error for the judge to charge the jury that if the plaintiff, a child of 12 years, was a passenger upon the street, and was injured by an obstruction on the street while playing thereon, and such playing was simply incidental, it would be no bar to recovery, if the city was negligent.

6. It was not error to refuse to charge the jury that one passing from the street to the sidewalk, or the reverse, in a city, at any point other than a crosswalk, has no reason to expect a safe passageway, and must therefore do so at his own risk.

7. The verdict was supported by the evidence.

(Syllabus by the Court.)

Error from city court of Richmond county; W. F. Eve, Judge.

Action by Robert Tharpe against the city council of Augusta. Judgment for plaintiff, and defendant brings error. Affirmed.

Wm. H. Barrett, for plaintiff in error.

A. S. Ulm and Ganahl & Ganahl, for defendant in error.

LITTLE, J. Robert Tharpe, by his next friend, brought an action against the city council of Augusta to recover damages for personal injuries alleged to have been sustained by him by reason of defendant's negligence, in the following manner: On December 28, 1898, while on one of the streets of the city of Augusta, he had occasion to cross the street, as he had a right to do. That while doing so he ran against a wire, projecting from which were many sharp and dangerous points, similar to a barbed wire, which defendant had for many months prior to this time allowed to remain stretched along the edge of the sidewalk. By his contact with the wire he was severely cut and otherwise injured, suffered much pain there-

[38 S.E. 390]

from, and was kept from his work and school, and his face permanently disfigured. The defendant denied generally that it was in any manner negligent. The evidence for the plaintiff made the following case: Plaintiff was 12 years old, and was engaged in the business of delivering a newspaper called the "Herald" to its subscribers in certain portions of the city every afternoon, from which he derived an income. On the day he was injured he was at the newspaper office with several companions, waiting for the Issue of the paper. Plaintiff, with two others, went across the street and stood a few minutes. While there he playfully struck one of his companions and "sprung around" and started to cross the street to the Herald office. As he did so he ran against and struck this wire, which was fastened to two telegraph poles 4 or 5 feet apart, and about the height of plaintiff's cheek from the ground. This wire was stretched along the curbing, and parallel to it. There was no regular street crossing where it was situated, though a few feet from its end there was a crossing from the street to a blacksmith shop on that side of the street. The sidewalk was 6 or 8 inches higher than the street at this point; The wire was from 10 to 20 feet from where his companion was standing when plaintiff struck him. The sidewalk was 8 or 10 feet wide. The evidence as to the condition of the wire was conflicting. One of the witnesses testified that there were several wires twisted together, and full of sharp points, — "mostly points, and not much wire"; another, that it was made of several strands of slick hay wire twisted together with a stick. In walking along the sidewalk, one would not strike this wire unless he attempted to cross the street, and it was probably placed there to keep horses from backing on the sidewalk. It had been there eight or nine months, though plaintiff did not know It was there. Another child had previously been injured by the same wire. It was removed the day after the accident, at the request of a policeman. Plaintiff was seriously injured in the face and head, and kept from school and work for several weeks, suffering in the meantime considerable pain. The details of his injuries were fully set forth, and it appeared from the evidence that his face would be permanently disfigured by a scar. The jury returned a verdict for the plaintiff for $300. Defendant filed its motion for a new trial, which being overruled, it excepted.

1. One of the grounds on which a new trial was sought was that the verdict was excessive. The evidence having shown not only serious hurt to the plaintiff, but also that he suffered much from pain. It cannot be ruled that the verdict was excessive.

2. It is also alleged that the following instruction given to the jury was error: "If you find from the evidence that the...

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