City of Atlanta v. Hampton
| Decision Date | 11 February 1913 |
| Citation | 77 S.E. 393,139 Ga. 389 |
| Parties | CITY OF ATLANTA v. HAMPTON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Even if evidence offered on behalf of the plaintiff after the close of the introduction of evidence by the defendant were not altogether in rebuttal, its admission was within the sound discretion of the presiding judge, as against an objection based on that ground.
Where in a suit for a physical injury, it was alleged that the plaintiff was hurt by stepping on a defective cap of a water meter on a sidewalk of the defendant municipality, it furnishes no ground for a new trial that the court, in charging in reference to the duty of a municipality in regard to keeping its sidewalks in reasonably safe condition for use by the public, referred to this duty as one in regard to its "streets" and sidewalks. Especially is this true where the court also instructed the jury that the plaintiff must recover, if at all, on the case as alleged.
Where the court charged, in substance, that it was the duty of a municipal corporation to keep its streets and sidewalks in a reasonably safe condition for passage by the public, that it was only bound to use ordinary care and diligence for that purpose, that it would fulfill its duty by so doing, that municipal corporations are not insurers against accident, and that the defendant was not liable, unless it was guilty of negligence, such charge furnishes no reason for reversal, on the ground that it places a heavier burden upon the municipality than would have arisen from an accurate statement of the rule of duty on the part of a municipal corporation in regard to its sidewalks.
The duty of a city in reference to using ordinary diligence to keep a sidewalk reasonably safe for public use extends to all of the sidewalk intended for travel by the public as a thoroughfare, and is not confined to keeping in a safe condition a special part only of the sidewalk which happens to be most generally used.
Although the plaintiff contended that the impaired condition of her health resulted from falling upon a sidewalk, caused by the defective condition of a water meter, and was entirely due to such injury, while the defendant contended that the subsequent condition of her health was not at all due to that cause, but to a pre-existing infirmity, yet, where the evidence so authorized, there was no error in charging with reference to the right to recover on account of the aggravation of an existing infirmity.
(a) The evidence authorized such a charge.
A charge that, if the jury should allow the plaintiff any amount for future mental pain and suffering, they should reduce that amount to its present cash value, figured at the rate of 7 per cent. per annum, was not an error harmful to the defendant.
Under previous rulings of this court, the loss of capacity to labor, occasioned by a physical injury, may be considered by the jury as in the nature of pain and suffering, although no pecuniary loss therefrom may be shown.
(a) In view of the context of the charge on this subject, it was not calculated to mislead the jury, or cause them to confuse the suffering resulting from the inability to use one's faculties with the loss of capacity to earn money.
The evidence supported the verdict, and the other grounds of the motion for a new trial require neither separate consideration nor a reversal.
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Action by F. O. Hampton against the City of Atlanta. Judgment for plaintiff, and defendant brings error. Affirmed.
J. L Mayson and W. D. Ellis, Jr., both of Atlanta, for plaintiff in error.
Moore & Branch, of Atlanta, for defendant in error.
Fannie O. Hampton brought suit against the city of Atlanta to recover damages on account of an injury alleged to have occurred by reason of stepping upon the cap of a water meter on one of its sidewalks and falling because of the broken condition of the cap. It was alleged that the cap of the meter had been in a broken condition for a week or more, so as to be in a dangerous condition for persons passing along the sidewalk; and that the city was negligent in not discovering and repairing it. The answer of the city put in issue the substantial allegations of the petition, and alleged that the plaintiff could have avoided the injury by the use of ordinary care. The jury found for the plaintiff $2,750. A new trial was denied, and the defendant excepted.
1. It seems that the testimony of physicians, which was offered by the plaintiff after the close of the evidence on behalf of the defendant, was in rebuttal of certain evidence which had been offered by the defendant. But if it were not strictly so, its admission was within the sound discretion of the presiding judge, as against an objection based on that ground. Orr & Hunter v. Garabold, 85 Ga. 373 (5), 11 S.E. 778.
2. Error was assigned because the allegation was that the cap of the water meter was on the sidewalk, and in his charge the presiding judge several times referred to the duty of a municipality in regard to keeping its streets and sidewalks in a reasonably safe condition for use by the public. In a general sense the word "streets" is often used as including sidewalks, and reference is often made to them in that manner by writers of high standing and by courts. Thus in 4 Dillon on Municipal Corporations (5th Ed.) § 1704, will be found this statement: "The liability of a city or town for actionable defects extends, as already remarked, to sidewalks; they being deemed to constitute part of the street." The rule of duty incumbent upon a municipality as to both streets used by vehicles and sidewalks used by pedestrians is to use ordinary care to keep them in a reasonably safe condition for travel in the ordinary modes, both by day and by night. So that the use of the word "streets" in connection with sidewalks, in instructing the jury as to the rule of diligence, if not...
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