City of Macon v. Smith

• Decision Date: 22 June 1914
• Docket Number: 5519.
• Citation: 82 S.E. 162,14 Ga.App. 703
• Parties: MAYOR, ETC., OF CITY OF MACON v. SMITH.
• Court: Georgia Court of Appeals

82 S.E. 162

14 Ga.App. 703

MAYOR, ETC., OF CITY OF MACON v. SMITH.

No. 5519.

Court of Appeals of Georgia

June 22, 1914

Error from City Court of Macon; Robt. Hodges, Judge.

Action by Ida Smith against the Mayor and Council of the City of Macon. From a judgment for plaintiff, defendant brings error. Affirmed.

Walter De Fore, of Macon, for plaintiff in error.

Ellis & Jordan and C. A. Glawson, all of Macon, for defendant in error.

ROAN J.

Mrs Ida Smith brought suit against the mayor and council of the city of Macon for injuries which she alleged were sustained by falling through a hole or cavein on Shamrock street, in that city. She alleged that in walking along Shamrock street at night, in a path usually traveled, she fell into a hole or washout, some five or six feet deep, which extended underneath the surface of the street; that she walked near to the opening or mouth of this hole, and stepped on what appeared to be firm earth, and it caved in with her, throwing her violently into the excavation, and thus causing her to suffer severe and permanent injuries, the nature and extent of which were set out in her petition; and that her injuries were not caused by the want of ordinary care on her part, but were due to the negligence of the municipality in failing to keep its street at that point in reasonably safe condition for use by the traveling public. The defendant in its answer set up that the place where the plaintiff alleged she fell was not located in Shamrock street, but was outside of the same upon the right of way of the Central of Georgia Railway and no duty devolved upon the city to keep this particular place safe for the use of pedestrians, and further that, if the plaintiff was injured as she alleged, it resulted from her failing to exercise ordinary care for her own safety, and from no fault or want of care on the part of the municipality. This statement embraces substantially the issues made by the pleadings. The trial resulted in a verdict in favor of the plaintiff for $1,000. A motion for a new trial on the usual general grounds was filed by the defendant, and was amended by adding the following grounds:

(1) Because the court erred in refusing to grant a nonsuit on motion of the defendant's counsel after the plaintiff had closed her evidence.

(2) Because the court erred in refusing to direct a verdict for the defendant after all evidence had been introduced upon the defendant's motion.

(3) Because the court erred in refusing to charge the jury as follows: "I charge you that a municipal corporation is under no duty to erect barriers or to maintain lights to prevent injury to persons seeking to enter upon or depart from a street from or upon private land at a point at which there is no traveled way, either public or private, and at which there is nothing to put the municipality on notice that an entrance is likely to be attempted there."

(4) Because the court erred in refusing to charge the jury as follows: "I charge you that when one voluntarily chose to take a path which was to a person in his condition manifestly dangerous, when one which was free from danger was easily accessible to him, he is guilty of such negligence as will preclude his right to recover damages for the injuries sustained by him in using such unsafe and unsuitable way."

(5) Because during the progress of the trial the judge erred in that he prejudiced the defendant's case by asking the following question of Dr. W. G. Lee, an alderman of the city of Macon: "Q. Who showed you the hole? A. I went with the city attorney, Walter De Fore."

(6) Because the court erred in charging the jury as follows: "If there is no preponderance of evidence, if the evidence stands equally balanced in the scale, she is not entitled to a verdict in the case. If the preponderance of evidence is on the side of the issue as contended for by her, then she is

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