City of Columbus v. Ogletree
| Decision Date | 07 August 1897 |
| Citation | 29 S.E. 749,102 Ga. 293 |
| Parties | CITY OF COLUMBUS v. OGLETREE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The territory added to the city of Columbus by the act of 1887 providing for the extension of its corporate limits, became after that act went into effect, a part of the city for all municipal purposes, and notwithstanding the provision in the fourth section to the effect that for 20 years from the passage of the act only such sums as may arise from taxes assessed in that territory shall be expended in the maintenance, improvement, and protection thereof, unless, in the discretion of the mayor and council, it may be desired to so expend a greater sum from the general treasury of the city, it is, nevertheless, the duty of the municipal authorities to keep the streets and sidewalks of the annexed territory in a safe condition for public use, and the fact that they did not have funds available for this purpose derived from taxes assessed therein will not be held a sufficient excuse for a failure in this respect.
2. The duty of construing a pertinent city ordinance which has been introduced in evidence, and of explaining its meaning to the jury, devolves upon the judge, and a request in effect asking that its construction be submitted to them was properly refused.
3. An ordinance making it the duty of policemen to report to the lieutenants of police all footways, bridges, and sidewalks requiring repairs necessarily renders it incumbent on the lieutenants to report upon the same to the authorities whose duty it is to have needed repairs made; and therefore, under such an ordinance, notice to a policeman or a lieutenant of a defective or dangerous place in a sidewalk is a notice to the city.
4. A charge upon a mortality table, which, in substance instructed the jury to ascertain the yearly amount of the plaintiff's diminished capacity to earn money, if any, multiply it by the number of years he might be expected to live, and then reduce the gross amount to present value, was not erroneous; the charge as to this table being in other respects appropriate, and on the whole sufficiently guarding the rights of the defendant.
5. There was no error in admitting in evidence the testimony of a deceased witness as embodied in an agreed brief of the evidence introduced at a former trial of the same case. This would not, however, prevent the opposite party from proving additionally other testimony given by this witness at that trial, and not included in the brief.
6. Evidence that the "authorities at the court house" were notified of a defect in a city sidewalk did not, of course, necessarily prove notice to the municipal authorities, but was admissible to be considered in connection with all the other evidence on the subject of notice. If the jury believed that the "authorities" referred to were the county officers, they clearly understood that this particular proof was of no value to the plaintiff.
(a) The judge's remark that he had not been notified of the defect, made in mere pleasantry, while the objection to the above evidence was being argued, was harmless, and presented no matter for serious exceptions.
7. A book purporting to contain the official minutes of a city council was, in the absence of the clerk of council for providential cause, he being the proper custodian of the minutes and records kept by the council, admissible in evidence upon proof showing that the book in question had been brought from the clerk's office by the city treasurer, who was acting in the clerk's place during his absence, and that the official signature of the clerk appeared upon the pages of the book in connection with what purported to be the proceedings of the council.
8. In order to authorize the setting aside of a verdict upon the ground that it was arrived at by chance, it must affirmatively appear that the jurors bound themselves in advance to arrive at the verdict in this manner, and that they in fact did so. This did not, in the present case, appear with sufficient certainly to authorize this court to overrule the discretion of the trial judge in declining to grant a new trial on that ground.
1. I concur in all the foregoing notes except the last. Per Lumpkin, P.J., dissenting.
2. Proof showing that 11 small pieces of paper, upon which were written amounts varying from $100 to $5,000, were found in the jury room after the verdict was rendered, together with another piece of paper, upon which like amounts and one other amount were written down, added, and divided by 12, giving as a result $2,537.50 (this being the precise amount of the verdict), in connection with the fact that, though the jurors were competent, in support of their verdict, to explain these facts, not one of them was called and sworn to do so, makes a prima facie case that the verdict was arrived at by chance, and under an agreement to fix its amount in the manner indicated; and, this being so, it ought to have been set aside. Per Lumpkin, P.J., dissenting.
Error from superior court, Muscogee county; W. B. Butt, Judge.
Action by George A. Ogletree against the city of Columbus. Verdict for plaintiff. New trial denied, and defendant brings error. Affirmed.
Francis D. Peabody, for plaintiff in error.
G. Y. Tigner and Blandford & Grimes, for defendant in error.
Ogletree brought his action against the city of Columbus for damages alleged to have been sustained from falling into a hole in the sidewalk upon a public thoroughfare in the city, it being alleged that the hole had been carelessly and negligently left open by the city. The jury returned a verdict for the plaintiff, and the defendant excepted to the overruling of its motion for a new trial.
1. The defendant filed a plea alleging that the place at which the plaintiff claimed to have been injured was within the territory which was annexed to the city of Columbus under the provisions of an act approved September 2, 1887 (Acts 1887, p. 491); that by the terms of such act "for a period of twenty years from the date of such annexation the mayor and council shall be required to expend in the maintenance and improvement of said annexed territory and in the protection of the same, and in the establishment of public schools therein, only such sums as may arise from taxation or otherwise in said territory, unless in the discretion of such mayor and council, a greater sum may be desired to be so expended from the general treasury of said city"; that all sums received by taxation or otherwise from the annexed territory during the year in which the injury occurred were expended by the city in the maintenance and improvement of that territory, and the protection thereof, and in the establishment of schools therein, and to have done any further work on the streets and sidewalks of the same would have necessitated an additional expenditure from the general treasury of the city, which the mayor and council did not see proper to make. The territory added to the city of Columbus by the act of 1887 became, after that act went into effect, a part of the city for all municipal purposes, and the duty rested upon the municipal authorities to keep the streets in the annexed territory in a condition reasonable safe for travel; and the negligent failure on their part to discharge this duty would render the city liable to any person injured thereby. Under the provisions of the act relied on as a defense, the city, in the absence of funds raised by taxation in the annexed territory, has the power, in their discretion, to use general funds in the treasury for municipal purposes within the annexed territory. It is, therefore, no answer to a claim for damages growing out of the negligent failure to repair the streets in the annexed territory that the city authorities did not see proper to exercise a discretion which, properly exercised, would have prevented the injury to the plaintiff.
2. The construction to be placed upon a city ordinance which has been introduced in evidence is a question for the court, and a request which, in effect, submitted to the jury the question of the proper construction to be placed upon the ordinance, was properly refused.
3. An ordinance of the city, making it the duty of policemen to report to the lieutenants of police all footways, bridges, and sidewalks requiring repairs, imposes upon the lieutenants of police the duty to report upon the same to the city officials, whose duty it is to have the needed repairs made. It therefore follows that notice to the city of a defect in the streets could be shown by proving that such defect was known to one of the policemen, who are the recognized mediums of communication, through the lieutenants of police, to the city officials having charge of the streets. When this case was here before (96 Ga. 177, 22 S.E. 709) it was held that, in the absence of an ordinance making it the duty of policemen to report defects in the streets of a city, notice of the policemen was not necessarily notice to the city. On the last trial, such an ordinance having been introduced in evidence, the case is directly within the principle referred to in the opinion of Justice Lumpkin in the former decision in this case.
4. The charge of the judge upon the mortality tables was substantially correct. Railroad Co. v. Burney, 98...
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