The Mayor v. Perdue

• Decision Date: 31 January 1875
• Citation: The Mayor v. Perdue, 53 Ga. 607 (Ga. 1875)
• Parties: The Mayor and Council of the City of Atlanta, plaintiff in error. v. James P. Perdue, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 607

The Mayor and Council of the City of Atlanta, plaintiff in error. v. James P. Perdue, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Municipal corporations. Streets. Notice. Before Judge Hopkins. Fulton Superior Court. March Term, 1874.

For the facts, see the decision.

W. T. Newman, for plaintiff in error.

B. F. Abbott, for defendant.

Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant to recover damages for injuries sustained in falling into an excavation made in the defendant's sidewalk on Mitchell street, in the city of Atlanta, the same being one of thepublic streets in said city. On the trial of the case, the jury, under the charge of the court, found a verdict for the plaintiff for $725 00. A motion was made for a new trial, on the ground that the court erred in overruling the defendant\'s motion for a non-suit, because the plaintiff had failed to prove that the defendant had notice of the excavation in the sidewalk of the street at the time of the injury complained of, and because the court failed to charge the jury, that to entitle the plaintiff to recover he must prove that the defendant had notice of the excavation in the sidewalk of the street at the time of the injury. The motion for a new trial was overruled, and the defendant excepted. It appears from the evidence in the record, that the excavation in the sidewalk was made by a party who was erecting a building adjacent thereto, and the *excavation was made to allow grates to cover the area wall of the building. The excavation into which the defendant fell, in the night time, was eight or ten feet deep, no railing around it, nor lights there; the excavation had been there two or three weeks. The general rule of law is, that a municipal corporation is bound to keep its streets and sidewalks in a safe condition for travel in the ordinary modes, by night, as well...