Glover v. City Council of Augusta, 33403

• Decision Date: 10 February 1951
• Docket Number: No. 2,No. 33403,33403,2
• Citation: 63 S.E.2d 422,83 Ga.App. 314
• Parties: GLOVER v. CITY COUNCIL OF AUGUSTA
• Court: Georgia Court of Appeals

Page 422

63 S.E.2d 422

83 Ga.App. 314

GLOVER v. CITY COUNCIL OF AUGUSTA.

No. 33403.

Court of Appeals of Georgia, Division No. 2.

Feb. 10, 1951.

Syllabus by the Court.

Questions as to negligence and contributory negligence are, except in plain and indisputable cases, for the determination of the jury, and where, as here, it appears that the plaintiff, while looking in the display window of a department store, tripped over a large sign alleged to have been placed immediately under such window through the negligence of city employees, a jury question is presented as to whether or not the negligence of the plaintiff so preponderated as to preclude a recovery by her.

Mrs. G. G. Glover filed suit in the Superior Court of Richmond County against the City Council of Augusta, a municipal corporation, for damages allegedly resulting from the negligence of the city in placing a parking sign of heavy iron, about 15 inches in diameter at the base, on the sidewalk of Ellis Street in Augusta, next to and parallel with the front of the Davison-Paxon store. The plaintiff alleged that the sign, so placed, constituted a dangerous trap, that she struck her foot against its base and was thrown violently upon it, and that as a result thereof she suffered certain described injuries. At the conclusion of the evidence the court, on motion, directed a verdict in favor of the defendant. The plaintiff filed a motion for a new trial on the general grounds which was amended by one special ground complaining of the direction of the verdict, and this judgment is assigned as error.

Peebles & Burnside, Augusta, for plaintiff in error.

Congdon, Harper & Leonard and W. P. Congdon, all of Augusta, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

The special ground of the motion for the new trial assigning error on the direction of the verdict will be considered in connection with the general grounds. It is well settled that the direction of a verdict is error if the evidence, together with all reasonable inferences and deductions therefrom, would have authorized a verdict for the opposite party. Miraglia v. Gose, 17 Ga.App. 639(1), 87 S.E 906; Code, § 110-104.

A municipality must exercise ordinary care and diligence to keep its streets and sidewalks in a reasonably safe condition for the use of pedestrians, and whether that has been done is usually a jury question. Seymour v. City of Elberton, 67 Ga.App. 426, 20 S.E.2d 767; Scearce v. Mayor and Council of Gainesville, 33 Ga.App. 411, 126 S.E. 883; City Council of Augusta v. Brassell, 48 Ga.App. 603, 173 S.E. 440. But, as stated in Wilson v. City of Atlanta, 63 Ga. 291, 292: 'While, in respect to its streets, a city and a passenger upon them are alike bound to ordinary diligence, yet the diligence of the former has relation to keeping the streets in a safe condition and repair, and that of the latter has relation to walking, riding or driving along them in proper manner and with due caution. 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 injury or inflicting any. * * * There can be no doubt that while the city was bound to observe its own proper measure of diligence, yet, if it failed, and the plaintiff could nevertheless have avoided the consequences by using ordinary diligence on his part he likewise failed, and he cannot recover.' However, even though the negligence of the property owner, or the municipality, may be patent, the duty imposed by law upon all persons to exercise ordinary prudence to avoid the consequences of another's negligence does not arise until the negligence of such other is existing and is either apparent or the circumstances are such that ordinarily prudent persons would have reason to apprehend its existence. Wynne v. Southern Bell Tel. Co., 159 Ga. 623, 629, 126 S.E. 388. But, as stated in Holliday v. City of Athens, 10 Ga.App. 709, 713, 74 S.E. 67, 69, 'It was certainly incumbent on the plaintiff, as a matter of law, to use his eyesight for the purpose of discovering any obstruction which might have been placed in the street.' Where the obstruction is patent, but there are reasons why the plaintiff did not see it, as for example a rope stretched across the street which was the same...