Lacy v. City of Atlanta

• Decision Date: 22 October 1964
• Docket Number: No. 2,Nos. 40906,40907,s. 40906,2
• Parties: Gertrude LACY v. CITY OF ATLANTA. CITY OF ATLANTA v. Gertrude LACY
• Court: Georgia Court of Appeals

Page 144

140 S.E.2d 144

110 Ga.App. 814

Gertrude LACY v. CITY OF ATLANTA.

CITY OF ATLANTA v. Gertrude LACY.

Nos. 40906, 40907.

Court of Appeals of Georgia, Division No. 2.

Oct. 22, 1964.

Rehearing Denied Dec. 15, 1964.

Syllabus by the Court

1. Where a municipality is guilty of negligence in maintaining a sidewalk in a defective condition over an extended period of time, the question of whether one who is injured while walking over it is guilty of negligence that will bar her recovery is for the jury except in clear and palpable cases. There was evidence in this case which would authorize a jury to find that, although the defective condition of the way was patent, the plaintiff would not by mere observation necessarily have a full appreciation of the risk involved. It was error, after a verdict in favor of the plaintiff, to grant a judgment n. o. v. for the defendant.

2. Negligence upon which recovery may be predicated must enter into the proximate cause of the injury inflicted. Where, even if the city were negligent in failing to erect lights or other safeguards, the plaintiff had knowledge of all facts which would have been disclosed by such warnings, it was error to charge that a recovery might be predicated on alleged negligence in failing to warn. The trial court properly granted a new trial for this reason.

3. The remainder of the court's charge on negligence, considered as a whole, shows no harmful error.

4. Evidence that subsequent to the plaintiff's injury the defendant made repairs on the alleged defective condition which is charged as the cause of injury is generally inadmissible.

Gertrude Lacy filed an action for damages against the City of Atlanta for injuries received by her when she fell on a broken strip of sidewalk near her house. The defendant answered alleging that the injury resulted proximately from the plaintiff's own negligence. On the trial of the case a verdict was returned in favor of the plaintiff. The defendant filed a motion for a new trial on the general grounds which was later amended by the addition of four special grounds, and also a motion for judgment notwithstanding the verdict based on its previous motion for a directed verdict because the plaintiff's contributory negligence barred her from a recovery. The court granted the motion for a new trial on one special ground only, overruling the other grounds of the motion, and also granted the motion for judgment n. o. v. In the main bill of exceptions the plaintiff excepts to the grant of these motions. In the cross bill the defendant excepts to the overruling of the remaining grounds of its motion for a new trial.

Walter B. Fincher, Atlanta, for plaintiff in error.

Henry L. Bowden, Ferrin Y. Mathews, Atlanta, for defendant in error.

RUSSELL, Judge.

1. On the issue of contributory negligence, the plaintiff's testimony was that she fell while crossing over the defective strip of sidewalk adjacent to the driveway of her home at about 3 p. m.; the sum was shining; she traversed this area about twice a week; she was unable to step out in the street and go around it because traffic was heavy, five or six cars went by, enough to keep her from going out in the street; she could have walked around it on the ground but didn't want to get scratched by the shurbbery; she was careful and was watching where she put her feet because she recognized the danger of a possibility of falling; she placed her foot carefully, looking at the slab as she did so; her foot did not slip off the slab but due to the fact that the dirt under one part of it had been washed away the block broke under her weight, causing her to fall; her foot slipped after the slab or brick broke, when it broke she slid, her foot slipped and she fell; she could not tell by looking down at the concrete as she placed her foot on it that it was washed out underneath; there were other pieces of the sidewalk lying there that had been broken mand knocked out; she had observed previously where it looked like pieces had been washed out and broken off; she stepped on the slab in question with her left foot, carefully, looking at it. Photographs introducted in evidence show an area of deteriorated block sidewalk immediately adjacent to a driveway, with shrubbery on one side and a tree on the other. The latter filled the area between the walk and the street curbing and its roots had apparently pushed up under the octagonal cement blocks so that they were broken into small pieces throughout the width of the walkway. Some are lying in their original positions; others are missing and a heavy sod of grass has grown up between them in the cracks and exposed area. The pictures suggest uneven terrain where a passer-by might easily be caught off balance by stepping on the edge of a broken piece of block, but do not suggest an area where the blocks themselves would be lying on an uneven or washed-out surface.

There was uncontradicted evidence that the sidewalk had been in its defective condition for a period of years, which would permit a jury to find negligence on the part of the defendant municipality. City of Camilla v. May, 70 Ga.App. 136, 27 S.E.2d 777. The difficult question is whether the plaintiff in walking over the area under these circumstances was guilty of such clear and palpable negligence as to bar her recovery as a matter of law, that is, whether the danger was so obvious that she must be said to have assumed the risk of any injury which occurred, no matter how carefully she was, in her own opinion, proceeding. The plaintiff did not misplace her foot and slip off the edge of a stone, but intentionally put her foot on a block which looked solid to her, but which was not solid and broke under he weight. Grayson v. City of Atlanta, 101 Ga.App. 575(4), 114 S.E.2d 459, holds: "A pedestrian using a sidewalk which a municipal corporation is negligent in maintaining in a condition unsafe for travel is not, as a matter of law, guilty of negligence barring a recovery in failing to observe the condition in the sidewalk although it may be patent and could be observed by the pedestrian if he would look, where it does not appear that by looking he would have a full appreciation of the danger and risk involved in using the sidewalk. City of Silvertown v. Harcourt, 51 Ga.App. 160, 179 S.E. 772.' City of Rome v. Gordon, 53 Ga.App. 536(2), 186 S.E. 439, 440, supra. Even prior knowledge on the part of the plaintiff of the existence of the defect will not bar a recovery.' See also Dempsey v. City of Rome, 94 Ga. 420, 20 S.E. 335; Heath v. Louisville & N. R. Co., 39 Ga.App. 619, 147 S.E. 793; City of Rome v. Phillips, 37 Ga.App. 299, 139 S.E. 828; City of Rome v. Hanson, 57 Ga.App. 222, 194 S.E. 887; City of Bainbridge v. Youngblood, 102 Ga.App. 195, 115 S.E.2d 696. 'There is no rule of law in this state that where a defect or dangerous excavation exists in a highway, and is known to one who elects to use such highway, such election, even if justified by the dictates of ordinary prudence, must as a matter of law entail the consequences of a want of ordinary care and prudence.' Harrell v. Mayor &c. of Macon, 1 Ga.App. 413(1), 58 S.E. 124. Sidewalks have no purpose except that of being walked on; it is the duty of municipalities who maintain them to keep them passable; the mere fact that a city has refused to do its duty in this regard for a number of years does not mean that every person who endeavors to use the way is lacking in ordinary care as...