Cook v. City of Atlanta

• Decision Date: 30 June 1894
• Citation: Cook v. City of Atlanta, 94 Ga. 613, 19 S. E. 987 (Ga. 1894)
• Parties: COOK et al. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

19 S.E. 987

94 Ga. 613

COOK et al. v. CITY OF ATLANTA.

Supreme Court of Georgia

June 30, 1894

Syllabus by the Court.

It is manifest that, by the exercise of ordinary care on the part of the servant of the plaintiffs, the consequences of the alleged negligence of the defendant could have been avoided. This plainly appears from the evidence relied upon for a recovery. There was no error in granting a nonsuit.

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by Cook & Coker against the city of Atlanta. From a judgment of nonsuit, plaintiffs bring error. Affirmed.

The following is the official report:

Cook & Coker sued the city of Atlanta in an action for damages to property. The nature of the action will appear from the report of the testimony hereinafter made. At the conclusion of the evidence for plaintiffs the court granted a nonsuit to which ruling plaintiffs excepted. The evidence for plaintiffs showed the following: On July 16, 1892, Cook & Coker were in the livery stable business in Atlanta. On that day, Cook discovered that a tire on one of the wheels of one of their carriages needed fixing, and had Wimpey, one of the drivers of the firm, to hitch a pair of fine horses to the carriage, and drive him (Cook) to his home, and, upon reaching home, directed Wimpey to drive the carriage to the place of business of John M. Smith, and have the carriage repaired. Smith's shop was so located that Wheat street was the direct route to it from Cook's house. Shortly afterwards, Cook was informed that two of his horses were in a ditch on Wheat street, between Fort and Bell streets. He hurried to the place, and found that the two horses were down in an excavation or sewer ditch in Wheat street, at a point between Fort and Bell. The carriage, which had the pole or tongue broken off, had been pushed back from the ditch. The ditch had been cut entirely across the south side of Wheat street, to within about 12 inches of the street-railroad track, which was in the center of the street, and from a point about 12 inches from the track on the north side thereof to within about 8 or 9 feet from the sidewalk on the north side of Wheat street. That part of the street upon which the railroad was located, and for a distance of 12 inches on both sides of the same, was not excavated, but was tunneled under, the surface being left undisturbed. The ditch was about 2 feet wide at the top next to the car track, and wider near the north side of the street, and was from 8 to 10 feet deep. The horses had gone down in the ditch head foremost, and the harness had to be cut all to pieces to get them out. One of them died immediately, and the other in a short time. It was about 1 o'clock in the day when they fell in. The street, at the point in question, was one of the public streets of the city. The way left clear in the center of the street was about two feet wider than the carriage track. There were no barriers or guards around the excavation; nothing to put one on notice of danger, except the excavations themselves, and the piles of dirt and stone one each side of the excavations. Wimpey had been working for...