City of Commerce v. Bradford
| Decision Date | 11 July 1956 |
| Docket Number | Nos. 1,2,No. 36062,36062,s. 1 |
| Citation | 94 S.E.2d 160,94 Ga.App. 284 |
| Parties | CITY OF COMMERCE v. Agnes BRADFORD |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A petition which alleges that the defendant negligently breached a duty owed the plaintiff, thereby proximately causing the plaintiff to sustain described injuries and suffer pain and loss of ability to earn certain salaries and wages which she was earning when injured, sets forth a cause of action.
2. In the present case where the plaintiff submitted evidence of the facts alleged in the petition referred to in headnote 1, and her proof did not disclose any defense debarring her right of recovery, and was not conclusively refuted, the evidence supported a verdict in her favor.
3. The trial judge did not err in denying the motion for a judgment notwithstanding the verdict.
4. 'Although there may be a ground of objection to testimony which would have been good if made, yet if the objection made be not good, it will be overruled.' Cox v. Cody, 75 Ga. 175(1a).
5. Where the verdict returned by the jury is authorized though not demanded by the evidence, and is not so excessive or small as to strongly indicate prejudice or bias, it will not be disturbed.
6. It is not error for the court in a single paragraph to refer to several items of damages prayed by the plaintiff, when the rules applicable to each item of damages are in another portion of the charge and are clearly and separately defined.
7. A charge that implied that a plaintiff married woman could recover for loss of ability to earn money, except as salary or wages, would be error. But a charge not susceptible to any other construction than that of the plaintiff's right to recover for diminished capacity to earn salary and wages is not error.
8. Where, as here, the issue of comparative negligence is not raised by the pleadings, it is not reversible error to fail to charge the principle of law relating thereto in the absence of timely written request.
9. While in some instances loss of ability to work and earn money is pleaded as special damages, such deprivation may constitute both general and special damages according to the pleadings and proof of the case.
10. There is nothing amiss in counsel reading the law of the case as adjudicated by this court.
11. While, if objection is made to improper argument, it is not necessary to move for a mistrial, Code, § 81-1009, where there was no motion for mistrial, the objection interposed was mild, and the withdrawal of the offending argument prompt, and from the court's ruling the jury must have understood that the matter objected to was not for their consideration, it was within the discretion of the trial court whether he would declare a mistrial.
Mrs. Agnes Bradford filed an action for damages for an alleged personal injury against the City of Commerce in Jackson Superior Court. She alleged that about 1:30 a. m. on April 5, 1953, she arrived at the home of her relative, Mrs. Geraldine E. Owens, on College Avenue in the City of Commerce. She parked her car on the city street and prepared to enter the premises and property of Mrs. Owens. Running between and completely across the front of the lot, where petitioner's relative resided, and the street was a gutter or drainage ditch. Prior to March of 1949 the city authorities, or persons unknown to the plaintiff but known to the defendant, had placed three apparently sound planks across the gutter or ditch, the left plank being 59 inches long and 7 inches wide, the middle plank being 65 inches long and 7 1/2 inches wide, and the right plank being 53 inches long and 7 inches wide. The said planks were the only means of ingress to and egress from the said property of Mrs. Owens. One end of the three planks extended into the city street and the other end rested on the edge of the lot of Mrs. Owens, directly in front of the entrance to her walkway to the front porch. There being no paved sidewalk along this street, the plank walkway served as and took the place of a sidewalk for those pedestrians desiring to cross over. The plaintiff attempted tempted to use the planked walkway to reach the residence of her relative. The night being dark and the residence being in the center of the block, about 150 feet or more from the nearest street light, the planked walkway was too far from any light to be illuminated; therefore, in a cautious and careful manner, the plaintiff held onto the front right fender of her parked car until she had stepped down upon the planked walkway. When she had taken two steps upon the planks, without any warning the left plank of the three rocked and rolled under her left foot and threw her to the left and off the planked walkway into the gutter or ditch, whereby she sustained serious, severe and permanent injuries.
The plaintiff further alleged that the City of Commerce, on or about February 1, 1953, under the supervision of one Arthur Rice and in connection with street improvements in front of the said residence of Mrs. Owens on College Avenue, used a road scrape to grade the street and scraped out the gutter or ditch all along the frontage of said property, making the gutter or ditch deeper and wider, piling up dirt on each side thereof and leaving said ditch about 4 feet wide and 3 feet deep. In order to enter or leave the premises of Mrs. Owens, the public had either to walk across the said planks or jump the ditch--the city having provided no other way to get from College Avenue to the Owens residence. There was not even access to her property for her automobile, but it had to remain parked in the street at all times. This planked walkway was continuously used by the public for four or five years, or more, to reach the residence of Mrs. Owens. Over a period of years these sturdy planks became weather-beaten; and with time the bottom of the left plank, for about form inches from each end, was eaten away by rot and was rounded off, whereas it had been square and flat. This defect was hidden and concealed from a casual observer and made the plank liable to rock and roll when used; but these planks at the time were well embedded in the soil, due to constant use over the years. About February 1, 1953, while the city was engaged in grading College Avenue and scraping and cutting down the gutter and deepening the ditch fronting the Owens property, under the supervision of the city superintendent of public improvements, the city removed the planked walkway; and after cutting the ditch deeper and wider and piling up dirt on each side thereof, the city carelessly and negligently replaced the three planks without repairing the rotten ends and by just throwing them back across the ditch, not in the same position or place before occupied, but merely lying loosely upon the top of the piles of dirt. The rotten condition of the underside of the extreme left plank was known to the city authorities through handling of them. It had been in this deteriorated condition for some time, and would now rock and roll under use if not embedded in the soil; yet the defendant, through its officers, agents, servants and employees, knowing of the danger incident thereto, failed to repair or securely fasten down said planks, and also failed to notify, caution or warn plaintiff or the public not to use the planked walkway, or of any danger incident thereto.
Plaintiff alleged further that on the date above named Mrs. Owens made formal or official demand upon the said Arthur Rice, superintendent of city streets and of the construction department of said city, that the City of Commerce construct a concrete walkway across said gutter or ditch in place of said planks, and also construct a driveway, as was the custom and practice of municipalities in exercising control over streets and sidewalks, since after said grading and scraping she had no means of ingress to or egress from her residence property. Some time after this, and prior to the fall of the plaintiff with the injuries consequent thereto, Mrs. Owens again demanded that said improvements be made, this time of Mayor Paul Scoggins, of said city, himself, specifying that a walkway and driveway be constructed. The city however, failed to do so and was negligent through its officers, agents and employees in so failing to provide safe ingress to and egress from the Owens property, after having cut a gutter or drainage ditch entirely across the front thereof. The defendant city knew of the defect in the plank that rotted, and had failed to repair it though said defect had existed more than two years. Said plank walkway was upon one of the main streets of said city and the city through its employees and officers knew thereof, having removed the planks and replaced them. They knew pedestrians were using said walkway. The said defect, by reason of its existence over said period of time, was notice to said city of the hazard involved. The city in allowing and maintaining a defective walkway across a city gutter or ditch, without guarding or warning the public and the plaintiff of the danger of a possible fall therefrom, and in failing to notify the plaintiff of the danger thus created, was guilty of a lack of reasonable care and diligence in the matter of keeping its streets and sidewalks safe for use of the public and the plaintiff.
The plaintiff alleged that her injuries were caused solely by the negligence of the defendant in the following particulars: (a) In grading, cutting and widening said gutter or ditch on the city street completely across the frontage of said property without providing means of ingress and egress. (b) In allowing and maintaining a defective walkway across the city gutter or ditch to rot, without repair and without guarding or warning the public and plaintiff of the danger thus created. (c) In carelessly and unskillfully placing and permitting to be placed upon said gutter or ditch...
To continue reading
Request your trial
-
Young Men's Christian Ass'n v. Bailey, s. 41321
...of such conduct would have been so grave as to require a reprimand or declaration of a mistrial.' City of Commerce v. Bradford, 94 Ga.App. 284, 298(10), 94 S.E.2d 160, 171. 20. In special ground 25 error is assigned upon the refusal of a request: '(a) I further charge you that in paragraph ......
-
Big Apple Super Markets of Peachtree, Inc. v. W. J. Milner & Co., 40857
...& Atlantic Ry. Co. v. Smith, 145 Ga. 276, 277(5), 88 S.E. 983; Powell v. Berry, 145 Ga. 696(5), 89 S.E. 753; City of Commerce v. Bradford, 94 Ga.App. 284, 297, 94 S.E.2d 160. The trial court did not err in overruling ground 11. 6. Grounds 15 and 16 complain of the court's sustaining objecti......
-
Royal Crown Bottling Co. of Macon v. Bell
...if made, yet if the objection made be not good, it will be overruled.' Cox v. Cody & Co., 75 Ga. 175 (1a).' City of Commerce v. Bradford, 94 Ga.App. 284, 291, 94 S.E.2d 160, 162. The only ground of objection made upon the trial to the plea of entrapment and the cross-examination was as foll......
-
U.S. Fire Ins. Co. v. Tuck
...of law conclusively refutes the proof made of the plaintiff's case can a verdict for the defendant be directed. City of Commerce v. Bradford, 94 Ga.App. 284, 94 S.E.2d 160.' Moate v. H. L. Green Company, 95 Ga.App. 493, 500, 98 S.E.2d 185, The Bradford and Moate cases, in substance, pronoun......
-
Table of Cases
..., 998 F.2d 418 (7th Cir. 1993), § 3:550.95 Cippillone v. Liggett Group , 505 U.S. 504 (1992), § 6:120.52 City of Commerce v. Bradford , 94 Ga. App. 284, 94 S.E. 2d 160 (1956), § 10:750 Coates v. A.C.&S., Inc., 133 F.R.D. 109 (E.D.La. 1990), § 9:92.1 Cobuty v. Cavanaugh , 141 F.R.D. 136 (D. ......
-
Preparing for Trial and Appeal
...2d 570 (Wis. 1964) (three-year-old boy); Allers v. Willis , 643 P.2d 592 (Mont. 1982) (manual laborer); City of Commerce v. Bradford , 94 Ga. App. 284, 94 S.E. 2d 160 (1956) (married woman); Annot., “Proof of Prospective Earning Capacity of Student or Trainee, or of Its Loss, in Action for ......