City of Thomasville v. Crowell

• Decision Date: 17 May 1918
• Docket Number: 9112.
• Citation: 96 S.E. 335,22 Ga.App. 383
• Parties: CITY OF THOMASVILLE v. CROWELL.
• Court: Georgia Court of Appeals

96 S.E. 335

22 Ga.App. 383

CITY OF THOMASVILLE v. CROWELL.

No. 9112.

Court of Appeals of Georgia, First Division

May 17, 1918

Rehearing Denied July 9, 1918.

Syllabus by the Court.

There was evidence to support the verdict.

(a) There was testimony from which the jury were authorized to infer that the hole in the sidewalk which brought about the injury to the plaintiff was within the corporate limits of the municipality, and any conflict in the evidence on this point was settled by their verdict, as one of the issues of fact determined. The testimony as to long use as a street by the public, and the general repute as to the location of the milepost which marked the corporate boundary, was adequate in the absence of any definite evidence to the contrary precisely establishing the actual location of the corporate boundary.

(b) The testimony of a party who offers himself as a witness in his own behalf must be construed most strongly against him, if it be self-contradictory, vague, or equivocal, and, unless there be other evidence tending to establish his right to recover he is not entitled to a finding in his favor if the version of his testimony most unfavorable to his case shows that the verdict should be against him. Southern Ry. Co. v Hobbs, 121 Ga. 428, 49 S.E. 294. See, also, Steele v. Central Ry. Co., 123 Ga. 237, 51 S.E. 438(1). However, "if the plaintiff introduce other witnesses whose testimony is sufficient to establish the allegations of the petition," he may nevertheless prevail. Ray v Green, 113 Ga. 920, 39 S.E. 470(2). The testimony of the plaintiff in this case, construed most strongly against him if uncertain or negative, did not expressly conflict with other testimony offered by him which tended affirmatively to prove that the defect in the sidewalk which caused his injury was within the corporate limits of the city. The case of Meinhard-Ferst-Doyle Co. v. De Loach, 19 Ga.App. 323, 327, 91 S.E. 446, is not in point, as the testimony of the plaintiff was not directly "adverse" to his interest.

The fifth ground of the motion for a new trial, which complains of the admission of certain testimony of the plaintiff's witness Stevens, is without substantial merit; for, aside from the question as to its admissibility, there was other testimony to the same general effect which appears not to have been objected to, and therefore its admission is not ground for reversal. Besides, this part of the testimony of Stevens (the admission of all of which is complained of in this ground of the motion), to the effect that he had built certain sidewalks by the direction of the mayor and council, was competent as tending to show that the city exercised control over this particular sidewalk, or that the place in question was used and recognized as a street by the city authorities. See, in this connection, City of Dalton v. Humphries, 139 Ga. 556, 77 S.E. 790(3), and Mayor, etc., of Americus v. Johnson, 2 Ga.App. 378, 58 S.E. 518(4).

The court did not err in declining to give a requested written instruction which included a statement to the effect that if the jury should find that the plaintiff had full knowledge of the existence of the alleged defect in the sidewalk, but nevertheless endeavored to pass over it when there was no emergency requiring him to do so, he could not recover notwithstanding he stepped or stumbled in the hole, or was unable to step across it,...