Skidaway Shell Rd. Co v. O'brien

• Decision Date: 30 September 1884
• Citation: Skidaway Shell Rd. Co v. O'brien, 73 Ga. 655 (Ga. 1884)
• Parties: Skidaway Shell Road Co. vs. O'Brien.
• Court: Georgia Supreme Court

73 Ga. 655

Skidaway Shell Road Co. vs. O'Brien.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Practice in Superior Court. Amendment. Torts. Before Judge Adams. Chatham Superior Court. March Term, 1881.

Reported in the decision.

W. S. Basinger; A. R. Lawton, for plaintiff in error.

Richards & Heyward, for defendant.

Blandford, Justice.

Ellen O'Brien brought her action against the Skid away Shell Road Company, and by her declaration she averred:

" For that, whereas, heretofore, to-wit: on July 20th, 1878, the defendant unlawfully or wrongfully dug, or caused to be dug, a ditch o_r hole at the junction of the Skid away Shell Road, in said county, and a village path or road leading thereto, near the toll gate of defendant on said road, and joining therewith, into which ditch or hole your petitioner fell at night.

The plaintiff proposed to amend her declaration as follows:

"That over the hole or ditch into which she fell the defendanthad previously maintained, placed and kept up a plank, board or wooden crossing to enable the public and people living in the neighborhood, including plaintiff, to have access to said shell road at said point, where a certain street or roadway for the use of the people joined said shell road, separated only by a ditch, which ditch was bridged over by defendant for the use of the public, which said bridge, plank or wooden crossing was removed by defendant without notice to plaintiff, under such circumstances as to constitute neglect by defendant to caution or protect the public or your petitioner from falling into the open hole or ditch made by the removal of said crossing, etc., that plaintiff, in the exercise of care, fell into the hole or ditch, and was injured, etc."

This amendment was filed in the clerk's office in vacation without notice to defendant; at the next term of court, when the parties were proceeding with the trial of the case, defendant's counsel discovered the amendment, and immediately claimed a surprise. The court continued the case, and defendant's counsel immediately filed a motion to strike the amendment, because the same contained a new cause of action. At the next term of the court, argument was had on this motion, and the court overruled the same, and defendant excepted. The jury found for the plaintiff, and defendant moved the court for a new trial, which was refused by the court, and this is excepted to.

1.The defendant was in time with its motion to strike the amendment. The same had...