City of Brunswick v. Glogauer

• Decision Date: 20 September 1924
• Docket Number: 4003.
• Citation: 124 S.E. 787,158 Ga. 792
• Parties: CITY OF BRUNSWICK v. GLOGAUER.
• Court: Georgia Supreme Court

124 S.E. 787

158 Ga. 792

CITY OF BRUNSWICK v. GLOGAUER.

No. 4003.

Supreme Court of Georgia

September 20, 1924

Syllabus by the Court.

Where a sidewalk extending along a street in a city is paved with tiles, and a root of a nearby tree extends under, and by its natural growth disarranges the tiles so as to produce a raised and irregular surface across the sidewalk, and to cause one of the tiles to project about two inches above the surface of the sidewalk, and the sidewalk is allowed by the city to remain in such condition for a number of years, and a pedestrian using the sidewalk stumbles over the projecting tile, and as a result falls and sustains an injury, under former decisions of this court it is a question for the jury to decide whether the city was negligent in allowing the sidewalk to remain in such condition.

The evidence in this case was insufficient to show that the defect referred to in the preceding note was to some extent obscured by a shadow.

It has been uniformly held that "Where in a civil case the judge, in stating the contentions of the parties, fully and fairly submitted the issues raised by the pleadings in the case, the failure of the court in the absence of a request to instruct the jury upon a contention of one of the parties not raised by the pleadings, although supported by some evidence in the record, is not cause for a new trial." Where under application of this rule the Court of Appeals would not have been required to reverse the judgment of the trial court for alleged errors in omission to charge without request, this court will not reverse the judgment of the Court of Appeals on account of its rulings on such assignments of error, whether or not the decision of the Court of Appeals was erroneous.

Under the facts of this case, evidence in behalf of the city, to the effect that many other people had safely passed over the same sidewalk when in the same condition as when the plaintiff was injured, and that no claims for injuries to persons by reason of other sidewalks shown to have similar defects had been filed against the city prior to plaintiff's injuries, was relevant.

The Court of Appeals did not err in the ruling complained of and dealt with in the sixth division of the opinion.

No ruling will be made as to the sufficiency of the evidence to support the verdict.

Certiorari from Court of Appeals.

Action by Hannah Glogauer against the City of Brunswick. Judgment for plaintiff was affirmed by the Court of Appeals (30 Ga.App. 727, 119 S.E. 420), and defendant brings certiorari. Reversed.

On November 30, 1920, Mrs. Hannah Glogauer instituted an action for damages against the mayor and council of the city of Brunswick, based on alleged personal injuries resulting from negligence in the maintenance of a sidewalk. On May 26, 1921, the petition was amended by alleging, among other things, that, since the filing of the original petition, the name of the defendant was changed by act of the Legislature to "the city of Brunswick." The petition alleged substantially the following:

At a point on the western side of Norwich street, about 100 to 125 feet north of I street, a root of a tree growing at the edge of the sidewalk extended under the sidewalk, and the growth of the root in time caused one of the tilings about the middle of the sidewalk to "tilt up" and be out of position to the height of about 3 inches above the level of the sidewalk. Opposite this point bricks were piled extending along the eastern side of the sidewalk, covering a width of 3 or 4 feet "from the eastern edge of said sidewalk and on said sidewalk," which had the effect of causing the defective tile to be so obscured that it was not readily detectable by a pedestrian on the sidewalk. While the sidewalk was in the condition above described, and after it had been in such condition for 2 or 3 months, the petitioner on December 29, 1919, was walking from her place of employment out to her home about one-fourth of a mile beyond the point above mentioned. She was walking along the middle of the sidewalk, believing that it was safe for her to use when her foot struck against the defective tile. The impact had the effect of throwing petitioner out of balance and causing her to fall to the pavement. In the act of falling, in an effort to protect herself, she involuntarily grasped the edge of the pile of brick, which, being insecurely piled and top-heavy, "toppled over" and fell upon her. She suffered a severe injury to her hip, permanent in character, which caused pain and suffering, and total loss of earning capacity. She was 59 years of age, with a life expectancy of 14 9/10 years, and she had an earning capacity of $75 per month. The grounds of negligence alleged were: (a) Permitting the sidewalk to remain in such defective condition; (b) failure to repair the sidewalk after notice of the fact; (c) allowing the brick to be insecurely stacked along the outer portion of the sidewalk.

The answer of the defendant admitted some of the paragraphs of the petition and denied others. Those that were denied embraced what is stated above. The petition did not show that at the time, or after the injury, the petitioner had a living husband; nor did the answer set up such fact, or contend that the plaintiff was not entitled to recover for her earnings on the ground that the right of action for such, if any, was in the husband.

On the trial there was proof of a severe injury, and that it was caused by stumbling over the tile and falling on the pavement of the sidewalk as alleged. Something more than a year after the injury the plaintiff caused to be made two photographs of the place and introduced them in evidence. All of the witnesses who testified to having seen the place on the day of the injury, and concerning the pictures, testified that the photographs gave a correct view of the scene as they saw it. One of the pictures showed a view of the sidewalk looking from south to north, and the other showed the view from the opposite direction. The pictures showed certain houses west of and fronting on the sidewalk and a line of open upright board fencing along the western edge of the sidewalk in front of the houses, and that no trees were on the west side of the sidewalk. The tree on the east side of the sidewalk appeared in the pictures, the root of which was said to have produced the break in the surface of the sidewalk. The line of piled bricks had been removed to be used in paving the street, and consequently did not appear in the pictures. The pictures showed that the walk was paved with six-sided tiling, and that along the east edge of the sidewalk was an unpaved space about one-half the width of the sidewalk. The tree was shown standing at the middle of this space. The root did not appear in the picture, but an irregular break in the surface almost opposite the tree appeared to extend across the sidewalk. Some 4 or 5 feet south of this break other tiles appeared to be out of position. In the middle of the sidewalk and included in the break first mentioned was a tile which was identified by the plaintiff as the one that caused her to fall. That tile was unbroken and in place, except that the northeast edge was slightly lower, and the southwest edge was apparently the thickness of the tile higher than the tile next south of it. It did not appear that there was an open space under the tile into which the plaintiff's toes could have gone. The only witness who testified to the thickness of the tile stated that he measured it, and that it was one and three-fourths inches thick.

The plaintiff as a witness in her own behalf gave a narrative which, in so far as it relates to her familiarity with the place and her conduct, and the cause of her injury, follows She was a clerk in a store, and had lived in the southern part of the city for many years, but only 5 months before had moved to a residence on Norwich street at the intersection of L street on the north side of the city. She usually used the street car in going to and from the place of work in the city, had walked only once or twice, and knew very little about the condition of the sidewalk. Her usual lunch hour was from 11 to 12 o'clock. On December 29, she was detained at the store where she was employed, so that she did not leave for lunch until about 12 o'clock. The street cars were running late, and she had missed one; so to avoid losing time from her business she started walking home to lunch. The route was along Gloucester street to the intersection of Norwich street, thence north along that street to the place where she intended to go. On reaching Norwich street she noticed that there were some bricks that were being used for paving; but looking up the street everything "looked favorable, * * * no sign of danger," and she proceeded on the route. After passing the intersection of I street, and before reaching the intersection of J street, while walking north along the west sidewalk of Norwich street in her usual gait, and "looking for no danger," her "right toe stumbled. It got caught under some broken tile, and I went backward. My big toe stumbled. My right foot was caught, and I tried to steady myself and fell on the sidewalk; [it] threw me out of balance in trying to steady myself. There was no way to reach the ground. There was some bricks stacked, * * * I thought I could save myself, and in touching the brick I was thrown flat into the sidewalk. After I was down on the sidewalk several of these bricks toppled over and struck me. * * * I had no knowledge about the broken sidewalk at all. * * * Those bricks being piled up there had the effect of casting a shadow on the sidewalk. * * * I was not anticipating any bad place on Norwich street before I got to this place. * * *...