Rucker v. Cunningham

• Decision Date: 28 February 1882
• Citation: 68 Ga. 431
• Court: Georgia Supreme Court
• Parties: Maddox & Rucker. vs. Cunningham.

68 Ga. 431

Maddox & Rucker. vs. Cunningham.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Jurors. Practice in Superior Court. Damages. Negligence. Nuisance. Streets. Before Judge HILLYER. Fulton Superior Court. October Term, 1881.

Emma L. Cunningham brought suit against Maddox & Rucker, alleging that they were warehousemen in are city of Atlanta, that they had caused cotton to be placed on the sidewalk in front of their warehouse in such a manner as to obstruct free passage along the walk, and almost to block it up; that the cotton was piled in heaps which overhung passers on the sidewalk; that while plaintiff was passing this place, one of these bales fell upon her and seriously injured her; that the cotton was so piled that drays and other vehicles passing along the street would come in contact with it, and that the bale that fell upon her was either knocked down by a vehicle so passing, or fell of its own weight; and in either event the accident resulted from the negligent manner in which defendants caused their cotton to be piled on the sidewalk.

On the trial, the evidence for the plaintiff substantially supported the allegations in the declaration. It showed that a drayman, who was delivering cotton to the defendants deposited some of it upon the sidewalk and drove off; that a country wagon passing struck the cotton so deposited, and it fell upon the plaintiff.

The testimony for the defendants was to the effect that they did not own the dray; that it was necessary in their business to have cotton delivered to them on the sidewalk, thence to be taken into the warehouse. That there was no unreasonable delay in moving it, but from the nature of the business, it was necessary for the cotton to stand upon the sidewalk for a time. Defendants always in-structed their employes to keep the sidewalk open for passers, and this was done as far as possible.

There was much other testimony as to the nature of the injury, state of health, etc., which it is not necessary to set out here.

The jury found for the plaintiff twelve hundred and fifty dollars. Defendants moved for a new trial, on the following among other grounds:

(1.) Because the verdict of the jury is contrary to the law.

(2.) Because the court erred in the following proceeding in said case: When the case was called for trial, the clerk of said court, under the order of said court, presented to the parties to the case a jury list composed of the regular panels for the trial of causes generally in said court, and the court ordered the parties to strike a jury therefrom for the trial of said case, when the proper and legal list from which the jury should have been stricken for the trial of said case was the grand jury, the case being one in which a new trial had been granted.

(3.) Because the jury which tried said case was not a legal jury, the same not being a special jury selected and stricken from the grand jury, and the verdict and judgment being, therefore, illegal.

[As to the last two grounds, the court certified that the point was not made before the trial, but the jury was stricken without objection, and that in fact he made no ruling on the point.]

Defendants also moved in arrest of judgment for the same reasons as those set out in the last two grounds of the motion for new trial. Both motions were...