The Mayor And Aldermen Of The City Of Savannah v. Wife

• Decision Date: 31 December 1868
• Parties: THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH, plaintiff in error. v. MILES D. CULLENS AND WIFE,defendants in error.
• Court: Georgia Supreme Court

38 Ga. 334

THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH, plaintiff in error. v. MILES D. CULLENS AND WIFE, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1868.)

Case. Motion for new trial. Decided by Judge Flemming. Chatham Superior Court. May Term, 1867.

Miles D. Cullens and his wife brought an action on the case against said corporation, to recover damages, because said wife had been injured by falling into a hole or inequality in the pavement of the public market of said city.

The evidence in the case was substantially as follows:

Lewis J. B. Fairchild, testified that he was in the market on the day of the accident; there were a great many people there and the place was one much frequented; Mrs. Ann M. Cullens was next in turn, after himself, to be served; and after being served, in turning, fell, from stepping into the hole; the hole was on the south side of the market, in the pavement between the market-house and the bench, about opposite to Rutherford's store; unless a person was very careful, he would have been apt to have fallen into that hole; witness lifted her up, senseless; hole would have been concealed by the crowd; witness came near falling into it, himself; accident happened early in January, 1866. On cross-examination, witness stated that hole may have beentwo feet across. On direct examination resumed, witness *stated that the same morning was the first time he noticed the hole; and he noticed it because he came near falling into it before the accident to Mrs. Cullens.

Plaintiff next read the testimony of Mrs. Mary E. Kersh, taken by deposition, as follows: She did not know the plaintiffs; was in the market of the city of Savannah, on January 6th, 1866, and did see a lady fall into a hole in the pavement of the market; did not know, of her own knowledge, that it was Mrs. Cullens, but was so informed; the hole was in that part of the market which is on Congress street, about opposite Rutherford's store, and inside of the railing; the hole was quite large, nearly a yard one way, and a little less the other; the lady was buying some sausages at a stall or outside bench, with her back to the hole; just as she had placed these in the basket, and was turning away from the stall, she fell in the hole. Witness did not think, from all she could see, that the lady was guilty of negligence; it was a hole of irregular shape, quite deep, and dangerous to persons purchasing in that part of the market; that part of the market was often crowded with purchasers; the lady could not stand alone or bear her weight on her feet; they had to give her a seat until a carriage came and took her away; she was lifted up and carried by hand to the carriage; she could not walk at all. Witness could not state the exact nature of the injury Mrs. Cullens received, but she appeared to be in very great pain. On cross-examination, this witness deposed that she did not think the lady was careless or negligent, because the hole was near the stall, and a person buying as she was, with others around her, at the stall or bench, could not well see or avoid the hole without exercising very great care; and persons buying goods in the market do not keep their eyes and attention fixed on where they are walking. Witness was looking at the lady when the accident was about to happen, and was making change for the sausages she had bought; and she fell just as she turned away from the bench; did not remember ever to have seen her before;a person walking along towards the hole could see it plainly, *unless the place was crowded; she remembered the day and month from the fact that her husband was taken sick the, day before, and that on that day she had to employsome one in his place to assist her. The hole had been there a long time; how long she did not know.

William Morel, sworn on same side, testified that he saw Mrs. Cullens in bed, after the accident, suffering great agony; break in the pavement had been there a long time, and witness regarded it as dangerous; he had nearly fallen into it himself, and several times spoke of it as a dangerous place, and said that somebody would fall into it and hurt himself; Mrs. Cullens was the life and soul of her family; hole, of which he spoke, was near the bench outside the market-house, partly under and partly outside said bench. On cross-examination, this witness testified that the hole was not repaired until Mr. Brunner came into office as clerk of the market; it was about the size of two chairs put together; about six inches deep on one side and four inches on the other; he thought Mrs. Cullens was about fifty-eight years old; city had been in charge of the United States military authorities from 21st December, 1864, to November, 1865.

Isaac Brunner, on the same side, testified that he was the present clerk of the market; that the hole was pointed out to him by the city marshal, Mr. Wayne; and that he had it repaired after he went into office as clerk, which was on the 12th January, 1866; the hole was from four to six inches deep; he had never noticed it before; supposed the cost of repairing it was not over a dollar and a half or two dollars. On cross-examination, stated his belief that the hole was about a foot square, and appeared to have been occasioned by the removal of a stone. The city was then, generally, in a bad condition, and much money had been spent in repairing, afterwards. On direct examination resumed, he stated that the hole was under the corner of the bench.

The depositions of Dr. James S. Morel, on the same side, were as follows: That he was a doctor of medicine, and had been a practitioner for thirty-four years; was called to see and professionally attend Mrs. Cullens, the plaintiff; *from her complaining of great pain in her hip, and the symptoms, declared a fracture of the neck of the thigh bone within the capsular ligament; attended her for a month or more; his charge was one hundred dollars; her condition had been one of pain, and she would probably be a cripple for life; with the advance of life, her condition would be attended with great inconvenience to herself and to her friends; had known Mrs. Cullens for many years; she was active in her habits, and the main stay of her family; and the accident which had deprived her of the use of her limbs had seriously injured her economical interests. Of her then present health he had nothing to say, except that she was unable to walk without artificial aid. On cross-examination, he stated that Mrs. Cullens was more than fifty years of age, and that bones are easily broken at that time of life, and that slight causes would sometimes produce a fracture.

Miles H. Cullens, son of plaintiffs, on same side, testified that he knew nothing, personally, of the accident; but that, for six months after it, his mother was not out of her room; and that she was still suffering; she had, before the accident, been a person of active business habits, but, since, had been able to do nothing; she got about her room with crutches; she had no use of her limb, could not raise herself without aid, and would probably never recover her powers. On cross-examination, he stated he did not know his mother\'s exact age, but believed Mr. Morel had stated it about correctly. Did not know his mother\'s habits in reference to market; but that she had been to the market four or five times just before the accident.

By consent, plaintiffs then introduced statement of Lyde Goodwin, formerly city marshal, to the effect that, from the rent of market stalls, he, as city marshal, had, in the month of December, 1865, paid into the city treasury one thousand dollars.

Richard T. Gibson, on same side, testified that he was city treasurer from February, 1865, to the latter part of the same year. On the first of November, of that year, the city had in its treasury about sixteen hundred dollars; and, on *the first of December, about two thousand dollars. During the month of December, the sum of about sixteen thousand dollars was paid in. The proceeds of rice turned over to the city by Gen. Sherman, seem to have been about thirty-seven thousand dollars when Dr. Arnold went out of office as mayor of Savannah. The money, known as the rice fund, had been used in keeping up the city stores for support of the poor. On the cross-examination, he testified that the city was much out of repair when it was turned over by the military to the civil authorities; and the city authorities did the most important works of repair as soon as they could, including repairs of jail and guard house. Gen. Sherman came in on 21st December, 1864; and the city was not turned over to the civil authorities until the first of November, 1865. Taxes were laid, collected and expended by the military during that time. The city was in bad condition when turned over by the military; and the expenses for the city police, and other matters of the restored civil government, were heavy.

Plaintiffs having here closed their case, defendant introduced the following evidence:

John R. Johnson, elected an alderman of the city on the first Wednesday of December, 1865, testified that, on the Monday thereafter, he was appointed chairman of the market committee, and that the market was then in bad condition, so far as respected the stalls and conveniences for selling. Pavements in and around the market were in fair condition. He had to borrow scales to do weighing. Repairs were made as soon as they could be done with limited means at command. His impression was, that the hole shown him, as the one which occasioned the accident to Mrs. Cullens, was not under the bench, and was about a foot square and six inches deep. As chairman of the market committee, he economized as much as he could, owing to the condition of the finances of the city. The hole in the pavement, above referred to, was not repaired until Mr. Brunner came in as clerk of the market; would not have noticed the hole if...