Stamps v. Newton County

• Decision Date: 20 September 1910
• Docket Number: 2,190.
• Citation: 68 S.E. 947,8 Ga.App. 229
• Parties: STAMPS v. NEWTON COUNTY.
• Court: Georgia Court of Appeals

68 S.E. 947

8 Ga.App. 229

STAMPS v. NEWTON COUNTY.

No. 2,190.

Court of Appeals of Georgia

September 20, 1910

Syllabus by the Court.

In refusing to strike that portion of the defendant's plea which set up that the death of the plaintiff's child was the fault of the plaintiff herself in negligently and carelessly permitting the child to pass over the footbridge without the guidance of some other person, well knowing that the stream at that time was very much swollen and in a dangerous condition, and that the plaintiff aided and contributed to her own injury by allowing the child to enter upon said footbridge without some other person to guide the child and prevent her from falling, the court did not err inasmuch as the defendant had the right to introduce evidence to show if it could that the mother was present, or at least in sight, at the time the child was drowned.

While a mother who is compelled to earn her own living by her labor may not be required in the exercise of due diligence to be present at all times and personally overlook the care of her children, still she is responsible for the exercise of ordinary care for the safety of her child while the child is in her presence.

While isolated excerpts from the judge's charge to the jury to which exception is taken, may seem inaccurate, the charge construed as a whole, was extremely favorable to the contentions of the plaintiff in error, and fairly and fully presented the law applicable to the issues presented by the pleadings and evidence.

(a) Construed together, all of the instructions of the court tended to impress the jury with the statement that if the death of the child was due to a defect in the bridge of which the county authorities had knowledge or notice, the plaintiff's right of recovery could not be defeated.

(b) The instruction to the effect that the plaintiff was not entitled to recover unless the county authorities knew of the defect of the bridge, or unless this defective condition had existed for such a length of time that knowledge thereof on the part of the county authorities would be presumed, was correct. Under the evidence adduced, and, when taken in connection with the further instruction that if the bridge was originally negligently or defectively constructed, and any defect in the bridge was the cause of the child's death the county would be liable, the charge afforded no ground for complaint.

(c) Whether the omission to replace guard rails upon the bridge if guard rails were previously there, or the failure to put guard rails upon the bridge in first instance, was or was not negligence on the part of the county authorities, was a fact to be determined by the jury from the circumstances of the case.

In any case in which it is contended that the circumstances of the transaction call for the application of the doctrine of res ipsa loquitur, the prerogative of the jury to judge whether the circumstances of the case itself are such as to raise an inference of negligence and to fix the liability upon the defendant for the act complained of (unless satisfactory evidence is offered by him) is exclusive, and not reviewable. The jury was authorized in the present case to find that neither the condition of the bridge nor the other circumstances in the case placed upon the defendant the burden of proving how the casualty resulted, and that the negligence of the county was not responsible therefor.

It is the duty of the proper county authorities to construct and maintain bridges across streams in a workmanlike and proper manner, so that any person may use them with safety, in the exercise of ordinary travel, but this duty is not one of extraordinary care and diligence, nor does its exercise extend to extraordinary occasions beyond the ken of general experience. The law does not make the county authorities insurers of the safety of any of those who use bridges.

It was not error to exclude from the consideration of the jury nails taken from the bridge in 1909, since the question at issue was the condition of the bridge in 1908, more than a year previous.

In the absence of any evidence as to the value of the child's services it was not error to omit to instruct the jury upon the measure of the plaintiff to recover upon that count of the petition.

It was not error to instruct the jury in substance that, even though both the plaintiff and the defendant might be negligent, the plaintiff's right to recover would not be defeated if the death of the child was caused by the negligent condition of the bridge, and the child in crossing was using as much care as a person of full discretion. The charge of which complaint is made presented one of the strongest contentions of which the evidence in behalf of the plaintiff was susceptible.

Hearsay testimony is permissible in explanation of conduct or, as in this case for the purpose of identifying and locating objects referred to in the testimony.

Error from City Court of Covington, W. H. Whaley, Judge.

Action by Susan G. Stamps against Newton County. Judgment for defendant, and plaintiff brings error. Affirmed.

Middlebrook, Rogers & Knox, for plaintiff in error.

R. W. Milner, for defendant in error.

RUSSELL J.

Susan G. Stamps brought suit for damages against Newton county, alleging that in August, 1908, her daughter, five years old, while crossing a public footbridge of the county, fell from it and was drowned, in consequence of the fact that one of the planks upon the bridge was not nailed, and tilted and threw the child into the stream. She sued both for the value of the child's life and the value of its services. The evidence in regard to the circumstances attending the child's death was conflicting. There was no testimony as to what was the value of the child's services or as to whether they were of any value. The verdict was for the defendant.

1. The plaintiff moved to strike that portion of the defendant's answer in which the county set up contributory negligence on her part. If the court erred in not sustaining the motion to strike, the error was secured by the instructions of the trial judge to the jury. They were told specifically that negligence on the part of the plaintiff could not defeat her recovery, if the proximate cause of the child's death...