Sim0n v. City Of Atlanta

• Decision Date: 30 September 1881
• Citation: 67 Ga. 618
• Parties: Sim0n. vs. City of Atlanta.
• Court: Georgia Supreme Court

67 Ga. 618

Sim0n. vs. City of Atlanta.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Municipal Corporations. Damages. Negligence. Nonsuit. Before Judge HILLYER. Fulton Superior Court. April Term, 1881.

Reported in the decision.

S. A. Darnell. George S. Thomas T. P. West. moreland, for plaintiff in error.

W. T. Newman, for defendant.

Speer, Justice.

Plaintiff in error brought his suit against the city of Atlanta for ten thousand dollars damages alleged to have been sustained for personal injuries done him by reason of the fault and wrongful act of defendant.

The declaration alleges " that by an act of the general assembly of 25th February, 1874, the city of Atlanta has the control and supervision of the streets thereof, and the needed authority to keep said streets and public places free from obstruction, and to prevent the improper use of said streets and public places J but that the defendant had no authority conferred by law to allow ropes or other obstructions to be placed in said streets. Nevertheless, said defendant wrongfully and unlawfully permitted and allowed both sides or ends of Broad street in said city, at a point where it crosses Marietta street at right angles, to be obstructed by ropes stretched across said Broad street, thus incommoding and endangering the community, and that petitioner passing along said street on his usual business on a wagon, then and there by reason of said ropes so stretched across said street at said crossing, was violently thrown from said wagon on the ground with great force and violence, thereby fracturing his collar bone and seriously and permanently injuring him internally, producing hernia or rupture, etc.; wherefore he brings suit, " etc.

On the trial of the case, the plaintiff submitted in substance the following proof. Plaintiff being sworn said: Was 42 years of age; resided in Atlanta, and was residing here 6th May, 1878 was employe of the Atlanta city brewery to deliver beer to the city customers of said company; was so engaged on morning of 6th May, 1878; wasdriving beer wagon along Broad street with beer for customers on south side of railroad: desired to cross railroad on Broad street bridge as the safest and most direct route; on approaching Marietta street which crosses Broad street at right angles, noticed Broad street was blocked by a crowd of people, and ropes were stretched across the street from the building on one corner to the other, on both the north and south sides of Marietta street where it intersected and crossed Broad. Saw several of the Atlanta police in the crowd on both sides of Marietta street in immediate vicinity of the ropes. Stopped my wagon; some one in the crowd told me to come on, that the ropes Would be raised for me to pass under; drove on, passed under the rope on the north side of Marietta street safely, and crossed Marietta street, reached the south side, the rope across was there raised, and while I was passing under it the rope either fell or was lowered so that it struck me, and by it I was dragged and thrown violently off he wagon and seriously and permanently injured as alleged. Witness said there was a firemen\'s parade and exhibition in the city of Atlanta on that day. Cannot say whether any of the policemen held the rope at time I was injured.

Dr. Westmoreland testified as to the extent of the injuries the plaintiff had received on the day of the fireman's parade; and also plaintiff introduced the Northampton tables to prove the reasonable expectation of life of one of plaintiff's age, and closed.

Defendant moved a non-suit, on the ground that the city had the right to obstruct its streets by ropes, etc., on the occasion of the public parades and drills of the firemen of the city, and that, even if this were not so, that the plaintiff was at fault in attempting to pass the obstructions, and the city was not liable; which motion for non-suit was allowed by the court, and plaintiff excepted.

It is insisted by the defendant in error that there was no evidence showing that the ropes constituting the obstructions complained of were shown to have been placed thereby authority or permission of...