Shows v. Petty

• Decision Date: 24 December 1909
• Docket Number: (No. 2,123.)
• Citation: 66 S.E. 624,7 Ga.App. 236
• Parties: GREAT COSMOPOLITAN SHOWS et al. v. PETTY.
• Court: Georgia Court of Appeals

(7 Ga.App. 236)

66 S.E. 624

GREAT COSMOPOLITAN SHOWS et al.

v.PETTY.

(No. 2, 123.)

Court of Appeals of Georgia.

Dec. 24, 1909.

1. Negligence (§ 113*)—Municipal Corporations (§ 803*) — Pleading — Contributory Negligence.

No harmful error was occasioned to the defendant in the court below by any ruling on the demurrer.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 186-193; Dec, Dig. § 113;* Municipal Corporations, Cent. Dig. § 1673; Dec. Dig. § 803.*]

2. Municipal Corporations (§ 818*)—Torts —Change of Conditions—Evidence.

While it is true that the fact of the defendant's having remedied a condition from which an injury resulted cannot be given in evidence against him, as an admission of negligence, yet, when the facts disclosed by the change have a distinct relevancy to the issue, they may be received in evidence.

[Ed. Note.—For other oases, see Municipal Corporations, Cent. Dig. § 1737: Doc. Dis. § SIS.*]

3. Sufficiency of Verdict.

The verdict is not without evidence to support it.

(Syllabus by the Court.)

Error from Superior Court, Terrell County; W. C. Worrill, Judge.

Action by H. A. Petty against the Great Cosmopolitan Shows and others. Judgment for plaintiff, and defendants bring error. Affirmed.

W. H. Gurr, for plaintiffs in error.

M. C.Edwards, for defendant in error.

POWELL, J. 1. To state the plaintiff's testimony, as gathered from the brief of the evidence: He was "traveling east." He had approached "Lee and Stonewall, " had gone through the narrow space to the right of the "Ghost Show, " had passed between the "Snakes" and the "Crazy House, " and was trying to pass in front of the "Holy City." when the accident happened. (No; It was not a case of delirium tremens; nor was he being initiated into a secret order. He was trying to pass along the public streets of thecity of Dawson in an automobile at a time when the streets were being partially occupied by the various attractions of a street carnival.) It was after nightfall; but, contrary to certain familiar traditions, there was no light on either the inside or the outside of the "Holy City." His automobile came in contact with certain guy ropes and tent pins (appurtenances of the "Holy City"), which were set out in that portion of the street he was trying to pass, and which he did not see on account of the darkness. The automobile sustained a severe rupture in the region of its mechanical viscera, besides other injuries, not fatal, but more or less serious. The owner of the automobile secured an attachment against the proprietor of the shows, and particularly of the "Holy City, " laying his damages at $95. He filed his declaration in the justice's court, setting out the general nature of the injury, and stating the various items expended in repairs. After a trial in the justice's court, the case was appealed to the superior court. In the superior court the defendant filed a general and special demurrer to the declaration. The judge overruled it, apparently on the ground that no such point had been made on the sufficiency of the declaration in the justice's court. The gravamen of this demurrer is that the plaintiff does not allege that he himself was in the exercise of ordinary diligence; in other words, does not negative his own contributory negligence.

Except in cases of railway employes injured by the negligence of fellow servants and suing under our statute governing that subject, contributory negligence is an affirmative defense, and it is generally not necessary for the plaintiff to negative its existence in his petition. The rest of the demurrer was largely speaking, and for that reason was not permissible. Beyond this, it was merely an attempt to compel the plaintiff to amplify his general statements. We have concluded that the declaration was adequate to...