City of Columbus v. Anglin
| Decision Date | 10 August 1904 |
| Citation | 48 S.E. 318,120 Ga. 785 |
| Parties | CITY OF COLUMBUS v. ANGLIN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The allegations of the petition were sufficient, as against demurrer, to show that the acts of negligence set out were the proximate cause of the injuries for which a recovery was sought.
2. Keeping its sidewalks reasonably safe is the duty of a municipal corporation, relatively not only to travelers, but to any person lawfully upon a sidewalk, using it for any purpose for which sidewalks are designed.
3. An amendment to a petition is not too late when offered before the case has been submitted to the jury.
4. Relatively to the law of pleading, a cause of action is some particular right of the plaintiff against the defendant together with some definite violation of that right.
5. No new and distinct cause of action is added to a petition by an amendment which contains additional matter descriptive of the same wrong pleaded in the original petition, and which does not plead any other or different wrong. Central R. Co. v Wood, 51 Ga. 515; Skidaway S. R. Co. v O'Brien, 73 Ga. 655; Henderson v. Central R. Co., 73 Ga. 718; Cox v. Murphy, 9 S.E. 604, 82 Ga. 623; Georgia R. Co. v. Roughton, 34 S.E. 1026, 109 Ga. 604-- overruled in so far as they conflict with the above.
6. Where, in an action ex delicto, the petition sets out certain acts of negligence to show a violation by defendant of the plaintiff's right, such petition may be amended by setting out additional acts of negligence to show substantially the same violation of that same right.
7. On the trial of an issue as to whether the material in a sidewalk was unfit for the purpose, and therefore was washed out by ponded surface water, leaving a hole, evidence that subsequently the rain washed another hole in the same sidewalk, under similar conditions, was relevant.
8. It is error for a trial judge, after an expert witness has testified, to ask him questions so framed as to intimate an opinion that the testimony of the witness is improbable or erroneous.
9. A municipal corporation is not liable for injuries occasioned by defects in one of its sidewalks, when such defects were not brought about by its negligence, and were latent defects, which could not have been discovered by the use of ordinary care and diligence.
10. The municipal corporation is not liable for injuries which, not being traceable to any negligence upon the part of either plaintiff or defendant, were, relatively to them, the result of accident.
11. Where the plaintiff seeks to recover on one or more of several theories of negligence, there is no error in refusing to give charges which, though sound as to one such theory, altogether exclude another on which a recovery might properly be based.
12. Where an action is brought against a municipal corporation for personal injuries resulting from a negligent failure to keep its sidewalks reasonably safe from an insecure overhanging shed, which it was its duty to have inspected, there is no error in refusing to charge that the same duty rested upon plaintiff and defendant, and that any defects in the shed which would have been notice to the defendant would also have been notice to the plaintiff.
13. Where it appears that the plaintiff's husband was the tenant of the building in front of which the shed was situated, but it does not appear on whom rested the duty of repairing the shed, there is no error in refusing to charge that it was the duty of the plaintiff and her family to take care of the shed and keep it in repair.
14. In an action against a municipal corporation for personal injuries resulting from the falling of a shed over a sidewalk, it is not error to refuse to charge that the plaintiff cannot recover if she was guilty of any contributory negligence.
15. There is no error in refusing to give charges requested, which, in so far as sound and applicable to the case, are covered fully by the charge given.
16. While the charge of the court was not altogether accurate, there was no material error therein in any of the particulars indicated by the assignments of error made.
Error from Superior Court, Muscogee County; W. B. Butt, Judge.
Action by D. A. Anglin against the city of Columbus. Judgment for plaintiff. Defendant brings error. Reversed.
T. T. Miller, for plaintiff in error.
Hatcher & Carson, for defendant in error.
Suit was brought by Mrs. Anglin against the city of Columbus for damages for personal injuries. The petition alleged that the municipal authorities had changed the grade of a certain street, and put insufficient drains therein, so that the surface water was allowed to pond near and upon the sidewalk and cause a washout, which the municipal authorities negligently filled with material which was not suited to the purpose, and which they knew was unsuitable; that by these negligent acts the supports of a shed over the sidewalk were caused to settle, and, as a result, the shed, which was built of wood and in sound physical condition, fell upon the plaintiff and injured her. The petition also alleged that the plaintiff was entirely free from fault. To this petition the defendant demurred. The court overruled the demurrers, and the defendant excepted pendente lite. When the case came on for trial, the plaintiff offered to amend her petition by alleging that the shed in question was dangerous and liable to fall, and that plaintiff had no knowledge of this fact, and could not have ascertained the same by reasonable diligence; that it was defendant's duty to keep its streets safe, to inspect sheds over the sidewalks, and to remove such sheds as might be dangerous and liable to fall; that this shed had stood over the sidewalk for 20 years, and defendant had knowledge of its defective condition and liability to fall, or could have discovered the same by the exercise of reasonable diligence in inspecting; that defendant failed in this duty, and "permitted said street to be dangerous by allowing said shed to stand"; and that "from said neglect of duty said shed fell in and upon the plaintiff, and without fault or negligence upon her part, and injured and damaged her" in a named sum. The defendant objected to the allowance of this amendment on the grounds that it came too late, and that it introduced a new and distinct cause of action. The court overruled the objections and allowed the amendment, to which ruling the defendant excepted pendente lite. Upon the trial the jury failed to agree, and the court ordered a mistrial. Upon the second trial the evidence showed that the shed which fell upon plaintiff was over the sidewalk in front of a store rented and run by her husband. The shed had stood for a number of years, but its timbers were sound at the time it fell. The shed was supported at its outer edge by three posts, while the inner side was nailed to the house or store; most of the nails being driven through a plate of the shed into a strip of weather-boarding on the house. This was not a proper or secure fastening, but the defect was not such as to be apparent to a casual observer. A competent man could have ascertained it by going up and looking at it closely, but an inspector going around could not have discovered the defect unless he made a critical examination of the shed. An ordinance introduced in evidence made it the duty of one of defendant's officers "from time to time to carefully examine" all such sheds within certain limits, and it was admitted that the shed here involved was within such limits. The defendant had changed the grade of a near-by street which intersected that on which the shed stood, and had put in a box drain to take off the surface water. This drain had been allowed to get out of repair and become obstructed, so that in times of heavy rain the surface water ponded near and upon the sidewalk, and under the shed, and near its supporting posts. A hole had been washed out in the sidewalk near the foot of one of the posts, and this hole had been filled with a certain red sand, which, according to some of the evidence, was unfit for the purpose; being liable to wash out, and affording insufficient resistance. The drain continued out of repair, so that in times of heavy rain the sidewalk was flooded, and part of the red sand washed away. As to the effect of the surface water and the red sand upon the stability of the posts, the witnesses were not agreed, though the weight of the evidence was that these things had not affected the efficacy of the posts to carry a load imposed vertically upon them. After the shed had fallen, it was found that one of the corner posts had "kicked in"; the earth between it and the old washout having given way, and allowed the post to fall outward, away from the perpendicular. The shed fell shortly after a heavy rain, and fell suddenly and without warning; all of it that fell coming down at practically the same time. It appeared that the plaintiff had wished to visit some friends, and had gone out on the sidewalk to see if it looked like rain. There was a chair on the sidewalk, and she "sat down in it for a second or two, and decided it was clear enough." She got up to go into the house, but as she reached the door the shed fell and struck her in the back, inflicting very serious injuries. The jury returned a verdict against the defendant for $2,500. The defendant moved for a new trial. The original motion contained three grounds, while by amendment 57 others were added. The trial judge overruled the motion, and the defendant excepted; assigning error upon the refusal to grant a new trial, and upon the exceptions pendente lite to which reference has already been made.
1. In support of the demurrer to the petition, it was argued that no...
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