City of Columbus v. Ogletree

• Decision Date: 29 April 1895
• Citation: 22 S.E. 709,96 Ga. 177
• Parties: CITY OF COLUMBUS v. OGLETREE.
• Court: Georgia Supreme Court

22 S.E. 709

96 Ga. 177

CITY OF COLUMBUS v. OGLETREE.

Supreme Court of Georgia

April 29, 1895

Syllabus by the Court.

1. Upon the trial of an action against a municipal corporation for personal injuries, it was error to instruct the jury that a given state of facts would be sufficient to establish negligence on the part of the defendant; these facts not being such as would in law, per sese, constitute negligence.

2. It not having been shown that the duty of looking after and reporting the condition of the streets and sidewalks of the city devolved upon its policeman, it was error to charge that notice to "the police" of the defective condition of a particular street or sidewalk would be notice to the municipal corporation.

3. Even if the plaintiff was entirely without fault, he would not be entitled to recover unless his injuries were caused by, or attributable to, negligence on the part of the defendant.

Error from superior court, Muscogee county; W. B. Butt, Judge.

Action by George Ogletree against the city of Columbus. Judgment for plaintiff, and defendant brings error. Brought forward from the last term. Code, §§ 4271a-4271c. Reversed.

J. H Worrill, for plaintiff in error.

G. Y Tigner and Blandford & Grimes, for defendant in error.

LUMPKIN J.

This was an action against the city of Columbus for damages alleged to have been sustained by the plaintiff from falling into a hole in the sidewalk upon a public thoroughfare of the city, the declaration charging that this hole had been carelessly and negligently left open by the city. There was a verdict for the plaintiff, and the defendant excepted to the overruling of its motion for a new trial.

1. The court, among other things, charged as follows: "If a man passes along the street, and purposely, negligently, and carelessly deviates from the regular traveled way, and falls into an excavation, and is injured, then the city would not be liable. But, on the other hand, if you believe from the evidence that the plaintiff was passing along, and that he inadvertently or unintentionally deviated slightly from the regular traveled way, and fell into this open eye of the sewer, or hole in the sidewalk, or near thereto, then it would have been negligence on the part of the city, provided it was in such close proximity to the sidewalk that the plaintiff did not know of its dangerous condition." It can hardly be doubted that this charge was erroneous. If anything is settled in the law of this state, it is that, as a general rule, what will or will not constitute negligence is a question peculiarly for determination by the jury. Where, by express law, a given act or omission is forbidden or declared to be negligent, the judge may inform the jury that such act or omission constitutes negligence; but in all other cases it is improper for him to instruct the jury that a particular state of facts would or would not be sufficient to establish negligence on the part of either party to the case on trial. There is no occasion to cite authority for what is here said, for the rule stated is well known, and generally accepted. We have no doubt at all that our able and learned brother of the circuit bench is perfectly familiar with the law on this subject, and he doubtless fell into error through mere inadvertence.

2. The court also charged: "As to knowledge upon the part of the defendant, gentlemen, notice to the police, or other city officials, or any one of them, would be notice to the whole. In other words, if you believe from the evidence in this case that the policemen, who were the agents of the city, or in the employ of the city, had notice of the dangerous condition of this street or sidewalk and they failed to take steps to repair the damage, or to repair the sidewalk so as to make it reasonably safe, then the city would be liable for injuries resulting therefrom." It does not appear that this charge was based upon anything contained in the charter or ordinances of the city of Columbus making it the duty of its policemen to look after and report the condition of its streets and sidewalks; but it would seem that the judge was undertaking to state what he regarded as the general rule upon this subject, without reference to charter provisions or municipal regulations. Thus regarded, we do not think the doctrine of the charge sound; certainly not to the extent of being alike applicable to all incorporated cities. In the absence of any ordinance or statutory provision specially defining the powers and duties of policemen, they are, presumptively, as at common law, mere peace officers. Throop, ...