Collier v. Cobb County, 33004

• Decision Date: 19 May 1950
• Docket Number: No. 1,No. 33004,33004,1
• Citation: 59 S.E.2d 672,81 Ga.App. 712
• Parties: COLLIER v. COBB COUNTY
• Court: Georgia Court of Appeals

Page 672

59 S.E.2d 672

81 Ga.App. 712

COLLIER v. COBB COUNTY.

No. 33004.

Court of Appeals of Georgia, Division No. 1.

May 19, 1950.

Rehearing Denied June 7, 1950.

Syllabus by the Court.

The trial judge did not err in overruling the motion for a new trial.

Louis Yancey, Jr., Atlanta, H. C. Schroeder, Marietta, for plaintiff in error.

Willingham, Cheney, Hicks & Edwards, Marietta, for defendant in error.

SUTTON, Chief Judge.

This was an action for damages, brought by Mrs. Emaline N. Collier against Cobb County, in Cobb Superior Court, based on the alleged liability of the county for injuries caused by a defective bridge on a public road. It was alleged, in substance, that the plaintiff was injured and her automobile damaged when a loose plank on a wooden bridge on a public road in the county was lifted up on one end and struck the bottom of the automobile while she was driving across the bridge, causing her to lose control of the automobile so that it ran off the road a short distance beyond the bridge, and negligence on the part of the county was charged in failing to maintain the bridge in a safe condition. After rulings on demurrer to the petition, not here material, the case proceeded to trial before a jury. The plaintiff adduced evidence in support of the allegations of her petition, and the defendant adduced evidence to the effect that it had not been negligent and that the plaintiff may have been guilty of negligence which caused or contributed to her injury. The jury returned a verdict for the defendant, judgment was rendered accordingly, and the plaintiff moved for a new trial. Her amended motion was overruled, and she excepted.

1. In special ground 1 of the motion error is assigned on the following excerpt from the charge: 'I charge you that it is the duty of the proper county authorities to construct and maintain bridges across streams in a workmanlike and proper manner so that any person may use them with safety in ordinary travel. This duty is not one of extraordinary care and diligence. The law does not make the county authorities insurers of any of those who use bridges.' In special ground 3 of the motion error is assigned on the last sentence of this same excerpt. It is the contention of the plaintiff that the reference to the county as not having a duty of extraordinary care and diligence and as not being an insurer was prejudicial, misleading, and confusing, and had the effect of minimizing the subsequent charge of the court as to the legal duty of the county in the matter, and may have caused the jury to believe that the question of insurance was involved in the case. Although it was unnecessary for the trial judge to charge negatively in respect to the duty of the defendant, that is, to charge that the duty of the defendant was not one of extraordinary care, or that of an insurer, such statements were correct as a matter of law. Thereafter, the duty of the defendant as being that of ordinary care was made clear by affirmative statements, and ordinary care was correctly defined. Under such circumstances this court cannot say that the former charge minimized the effect of the latter charge, or that it was in any way harmful or prejudicial. No error is shown by special grounds 1 and 3 of the motion.

2. In special ground 4 and as a part of special ground 10 of the motion error is assigned on a portion of the charge, as follows: 'The plaintiff would not be entitled to recover unless the county authorities knew of the defects in the bridge, or unless the defective condition, if there was such defective condition in this particular bridge, had existed for such a length of time that knowledge thereof on the part of the county authorities would be presumed.' The plaintiff asserts that the jury was not furnished with any criteria as to the length of time a defective condition should exist before knowledge on the part of the county would be presumed. It is also insisted that the language 'if there was such defective condition in the particular bridge' conveyed to the jury the impression that there was some doubt as to whether there were defects in the bridge, although the plaintiff had testified there were defects. If the trial judge had furnished the jury with any criteria as to what length of time defects must have existed before knowledge on the part of the county could be presumed such a statement would have...