Kohn v. Lovett

• Decision Date: 31 July 1871
• Citation: 44 Ga. 252
• Parties: M. KOHN, plaintiff in error. v. G. B. LOVETT, defendant in error.
• Court: Georgia Supreme Court

44 Ga. 252

M. KOHN, plaintiff in error. v. G. B. LOVETT, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Nuisance. Highways. Negligence. Before Judge Kirby. Floyd Superior Court. July, 1870.

*Broad street and Green street, Rome Georgia, are parallel, and about one hundred and fifty or two hundred feet apart. Kohn owned a store fronting on Broad street and running back from seventy-five feet to one hundred feet. At its rear was an excavation, about ten feet deep and about the same width. It was made to light the cellar, and had been there many years, unguarded. It was covered only by a plank walk, as wide as the back door. For over a year the house and cellar had been in the possession of Kohn's tenant, who had frequently told Kohn said place was dan-gerous. But no one fell into it till Lovett fell in one night, as he was rushing through the store to a fire on premises in the rear. Lovett was severely injured by the fall, and sued Kohn for damages. The Court was requested to give certain charges to the jury, but refused. These and what he did charge appear in the motion for a new trial. Lovett obtained a verdict for $2,000 00. Kohn moved for a new trial upon the following grounds:

1st. Because said verdict is contrary to the evidence.

2d. Because said verdict is strongly and decidedly against the weight of evidence.

3d. Because said verdict is contrary to law, and contrary to the law governing the evidence in said cause.

4th. Because the verdict of the jury and damages given by the jury to plaintiff are excessive, and not justified by the evidence and law applicable to the cause.

5th. Because the Court erred in refusing to give the jury the following charges, having been requested to do so in writing:

"1st. That if the plaintiff, Lovett, excited by being suddenly aroused from sleep by alarm of fire, ran into a house seventy-five or eighty feet long, occupied at the time; rushed to the back part of it, and finding back door closed, turned and went back to front again, and again turned, on another alarm, went back and found the back door open; and, under excitement, passed out on to a platform over an excavation *immediately in rear of the house, and seventy-five or eighty feet from either highway, and obliqued to the left, and fell into the excavation, the premises being then, and having been for many months occupied by other parties than defendant, the defendant is not liable for any damage plaintiff may have received.

2d. If said premises had been occupied for more than thirteen months by other parties, who had sub-let the property, said parties were the temporary owners or purchasers of said property, and if anybody was liable, it was said parties, and not the defendant.

6th. Because the Court erred in not giving the following charges as requested, (the same being in writing,) without qualification or addition thereto, to-wit:

1st. "Where an excavation is made near to, but not substantially adjoining a public highway, at common law no action lies against the owner of the land by a person who has strolled off the highway and fallen into such excavation." (Section 4, Hurls and Norman, page 67.) The Court added, "I give you this as the law, gentlemen of the jury, with these qualifications: that if the plaintiff was on the premises for the purpose of aiding in stopping a conflagration, and fell into a pit or excavation left unguarded, the defendant is liable, and you must find for the plaintiff, if the proof is that plaintiff was damaged." And farther, "I charge you that the streets of an incorporated city are different from an ordinary highway, as everybody is obliged to pass along them."

"2d. The occupant of land is under no obligation to strangers to place guards around excavations made by him, unless such excavations are so near a public way as to be dangerous under ordinary circumstances to persons passing upon the way, and using ordinary care to keep upon the proper path. When the excavation is at a considerable distance from the proper path or street, the owner or occupantis not liable to a stranger falling therein, whether consciously *or unconsciously off the path." The Court said: "I charge you, gentlemen, that this is the law with the qualifications in the last preceding charge."

7th. Because the Court erred in giving the following charges to the jury, at the request, in writing, of the plaintiff's counsel:

1st. "That a party cannot permit an excavation to remain unguarded on land which he has expressly or impliedly thrown open to the public, or which abuts on a public highway, without being answerable for the consequences, " defendant's counsel insisting that there was no evidence to show that defendant had ever expressly or impliedly thrown open the interior, or any portion of his lot to the public, or that the excavation or pit, into which plaintiff fell, abuts on a public highway, but to the contrary, that said excavation was about the center of the lot, immediately in the rear of the store house, seventy-five or eighty feet from either public highway, and has been there, in its, present condition for more than twelve years.

2d. "That if Lovett was on the premises of Morris Kohn, the defendant, for the purpose of saving the house from burning, or aiding in stopping a fire in an adjoining house in the city of Rome, he, Lovett, was not an intruder or trespasser."

3d. "That if the plaintiff, being on the premises, on lawful business, in the course of fulfilling his duty, in which the owner has an interest, without negligence on his part, falls into a pit, left open and unguarded by the owner, the owner is liable."

4th. "That if the jury believe, under the law and evidence, that the plaintiff is entitled to recover, and is without fault himself, he is entitled to recover such damages as will compensate him for the injury received, and his sufferings mental and physical;" defendant's counsel insisting, that there was no proof as to the amount of damage, if any, received by plaintiff, or of the value of his employment, or of hissufferings, physical or mental, and no opinion given by *any witness as to their value, or as to the amount of damage he is entitled to, if any."

5th. "If the plaintiff, on a dark night, while passing the vicinity of the excavation or pit, for necessary or lawful pur-poses, and there being no fence or barrier across it, fell into it, and was injured; the defendant, if he is owner, is liable."

8th. Because the Court erred in giving the following charge:

"The law of this case is, that the defendant may have been guilty of negligence without any liability to plaintiff, if the plaintiff was not exercising ordinary diligence when he received the injuries. To render the defendant liable for injuries to persons in cases like this, he, the defendant, must have been guilty of negligence, and the plaintiff must have exercised ordinary diligence and caution. If the plaintiff was a trespasser upon the...