The City Of Atlanta v. Brown

• Decision Date: 30 September 1884
• Citation: 73 Ga. 630
• Parties: The City of Atlanta. vs. Brown.
• Court: Georgia Supreme Court

73 Ga. 630

The City of Atlanta. vs. Brown.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

New Trial.Charge of Court.Practice in Supreme Court.Admission.Before Judge Dorsey.City Court of Atlanta.March Term, 1884.

To the report contained in the decision, it is only necessary to add that the grounds of the motion for new trial were as follows:

(1) to (3.)Because the verdict was contrary to law, evidence and the charge of the court.

(4.)Because the court erred in the following charge to the jury, upon the contradictory statements of plaintiff and her mother to Mrs. Lee Brown as to treading and slipping on a banana peeling being the cause of her fall, and plaintiff's saying to Mrs. Lee Brown, that she didn't object to getting a fall, so as to make money out of the city: "The law says that admissions must be scanned with care and received with caution.You have heard the evidence on that subject.The circumstances under which they were made you are to judge of; whether they were made under standingly; whether or not the party alleged to have made them understood what they were.You will look at all the circumstances; if they were freely, and under standingly, and voluntarily made, why they would be entitled to such credit as you will, in your judgment, see fit to give them."

(5.)Because the court erred in the following charge to the jury: "If you should further believe from the evidence that said injury to the plaintiff was an accident, and that the negligence of the city in no wise contributed to such injury, then you should find a verdict for the de-fendant, "—error being assigned on the clause, " and the negligence of the city in no wise contributed to such injury."

The motion was overruled, and defendant excepted.

W. T. Newman; E. A. Angier, for plaintiff in error.

Hoke & Burton Smith, for defendant.

Hall, Justice.

The plaintiff brought suit to recover damages from the city of Atlanta for a personal injury, which she alleged was done her by reason of a fall, while she was walking, with all care and caution, on the north side of East Mitchell street in said city; that this fall was on a rough sidewalk, which had been made of bricks, and in consequence of the rough and broken condition of the same and the steep grade of an adjoining stone pavement; that the bricks which composed the said sidewalk had been torn up and loosened from their positions, and it was in an unsafe condition; that the city, though knowing at that time, and previous thereto, the condition of the sidewalk, had, through gross negligence, failed to repair it, so as to make it a reasonably safe way for persons to pass over.The jury found a verdict for the plaintiff, assessing her damages at $500.

The defendant moved for a new trial, on various grounds, which was refused by the court.The judge stated in the order overruling the motion, "That, in his judgment, the alleged defect was, or should not be an actionable defect; as to require the city to remedy such slight imperfections in the sidewalks, would be to impose upon it an extraordinary degree of diligence, but as he had fully and fairly charged the jury as to the defect being actionable, and they having found in favor of the plaintiff on that question, he felt that he should not disturb their verdict."

1.It is insisted that this was not an untrammelled and free exorcise of the judge's discretion; that to refuse themotion, with such impressions resting upon his mind, was a virtual, if not actual, abuse of such discretion.To this, however, we do not assent; it seems to us that it does not amount to an abuse, but is rather a reluctant forbearance to exercise his discretion, although strongly inclined to do so, in favor of the defendant.Upon the whole, he concluded to let the verdict stand, and we are to look to this conclusion as the exercise of his discretion, rather than to the reasons that led him to hesitate, before interfering with the finding of the jury.A new trial was granted by the judge of the lower court in The City of Atlanta vs. Bellamy, 72 Ca. 420, and we refused to interfere, although we were well satisfied that the verdict was supported by the law, and was in accordance with the decided weight of the evidence.Had we been on the jury, we would have returned the same verdict, but as the discretion to grant or refuse the new trial was in the presiding judge, and we differed with him only as to the propriety of its exercise, even in that extreme case we could not say that it had been palpably abused, and did not feel...