Enright v. The City Of Atlanta

• Decision Date: 31 October 1886
• Citation: 78 Ga. 288
• Parties: Enright. vs. The City of Atlanta.
• Court: Georgia Supreme Court

78 Ga. 288

Enright. vs. The City of Atlanta.

Supreme Court of the State of Georgia

OCTOBER TERM, 1886.

Practice in Supreme Court. Streets and Sidewalks. Damages. Charge of Court. Evidence. Practice in Superior Court. Notice. Before Judge Van Epps. City Court of Atlanta. March Term, 1886.

Patrick H. Enright brought suit against the City of Atlanta to recover damages for injuries sustained by falling into a hole or excavation in a sidewalk in one of its streets. The evidence for the plaintiff tended to show that he was walking along the street at night with and slightly in advance of some comrades; that he came to what appeared to be a rough place in the sidewalk and crossed to where the opposite sidewalk ought to have been, and there fell into the hole, causing the injury. The testimony of one of the party accompanying him showed that such witness knew that the sidewalk was dangerous, but he did not think of the rapid gait at which the plaintiff was walking, or he would have called to him. There was other testi-mony as to the nature and extent of the injury. The plaintiff and his witnesses admitted that he had frequently been drunk both before and since the injury, and had had a number of cases in the recorder\'s court on account of drunkenness, but it was denied that he was drunk on the night of the injury.

The testimony for the defendant tended to show that the plaintiff was drinking on the evening of the injury, and he had been known to be drunk several times previously; and a physician testified that he examined the plaintiff and found no evidence of any injury resulting from the fall; that from the plaintiff's account of the injury, he thought it might, with proper treatment, have been cured in a month or six weeks; and that the fall could not have produced certain symptoms testified to, but they might have arisen from excessive use of liquor, and a man who had been drinking would be more susceptible to the shock than one who had not.

The jury found for the defendant. The plaintiff moved for a new trial on the following grounds:

(1)-(4) Because the verdict was contrary to law, evidence, justice and the charge of the court.

(5) Because the court erred in charging the jury as follows: " If the jury believe from the evidence that the corporate authorities of the city of Atlanta did not exercise all reasonable care and supervision over that portion of the street and sidewalk where the injury is alleged to have occurred to keep it in good repair and in safe condition for travel, and by that means allowed it to become defective and unsafe; and if the jury further believe from the evidence that the plaintiff, in attempting to walk along that portion of the sidewalk, by reason of such defect, was injured, and has sustained damage thereby, as charged in this declaration, and that he was at the time exercising reasonable care and caution to avoid such injury, the defendant is liable, and the jury should find for the plaintiff."

(6) Because the court charged as follows: " If the plaintiff was not in the use of ordinary care and diligence while walking along said street in the night-time, to avoid injury, he cannot recover."

(7) Because the court charged as follows: " If the injury of which the plaintiff complains was the result of accident, and was not occasioned either by his own negligence or that of defendant, as explained in these instructions, he could not recover."

(8) Because the court charged as follows: "The jury are further instructed that reasonable care and diligence required of the plaintiff, as mentioned in these instructions, means that degree of care and caution which might be expected reasonably from an ordinarily prudent person under the circumstances surrounding the plaintiff at the time of the alleged injury. Ordinary diligence involves a reasonable use of all the resources, mental and physical, which are at the command of a traveler along a street or sidewalk. Ordinary diligence on the part of the city is that care which every prudent municipality takes to put its streets in safe order and keep them so. On the part of the passenger of average powers and capacity, it is that care which every prudent person takes to pass over them without sustaining any injury or inflicting any."

(9) Because the court charged as follows: " If you believe from the evidence that the plaintiff was intoxicated, or so far under the influence of intoxicants as to affect his conduct at the time he was injured, and that for that reason, or any other, he failed to exercise ordinary care and diligence and was injured as a result of his own negligence, he could not recover. Mere proof, however, of a habit of using liquor, or of instances of its use by plaintiff to excess, even if on the very day of the alleged injury, would not bar his recovery, if the jury believe that its effects did not extend to the time he was injured, or that he was, notwithstanding, in the exercise of ordinary care and diligence."

(10) Because the court charged as follows: "Notwithstanding the jury should find from the evidence that the street, at the time of the alleged injury, was defective, yet this fact alone would not be sufficient evidence of negligence on the part of the defendant. In order to charge the defendant with negligence, it must further appear that such defect was actually known to the city through some of its officers, servants or agents, or that the defect had existed for such a length of time prior to the alleged injury that the city, if exercising ordinary diligence, would have known of the defect or ought to have discovered the fact."

(11) Because the court charged as follows: "If the jury believe from the evidence that the plaintiff was injured by reason of the defendant's negligently failing to keep its streets and sidewalks in reasonably good repair, or negligently allowing them to remain in an unsafe condition, as explained in these instructions, and without fault on his part, and that he has sustained damage, then the jury have a right to find for him such an amount of damages as the jury believe from the evidence will compensate him for the actual injuries sustained."

(12) Because the court charged as follows: "If the jury should find that the plaintiff was not negligent, and that the city was negligent, and that the plaintiff was injured in the manner alleged in the declaration, and that the city is liable therefor, the jury should only award such damages as would, in common reason and fairness, compensate him for his injuries sustained."

(13) Because the court charged as follows: "So far as such injuries are capable of being accurately estimated in money, that sum, and that sum only, should be allowed, and you would look to the evidence to ascertain it. Such would be a claim for expenses of medical treatment, of time lost, of...