Wilson v. The City Of Atlanta

• Citation: 60 Ga. 474
• Parties: Wilson. v. The City of Atlanta.
• Decision Date: 31 January 1878
• Court: Supreme Court of Georgia

60 Ga. 474

Wilson. v. The City of Atlanta.

Supreme Court of the State of Georgia

(January Term, 1878.)

New trial. Municipal corporations. Roads and bridges. Negligence. Damages. Before Judge Hillyer. Fulton Superior Court. October Term, 1877.

Wilson brought case against the city of Atlanta, alleging substantially the following facts: On June 13, 1875, he, with his three children, was riding along Harris street, in Atlanta, when one of his horses became frightened at the whistle of an engine near by, and sprang so suddenly forward as to break the swingletree. This increased the fright of the horses, and they ran away, without fault on plaintiff's part. Harris street was some fifty or sixty feet wide; along; the center of it, defendant had built an embankment or grade about ten feet high and two hundred yards long. This was thirty-five feet wide, thus leaving a part of the street sunk below its level. It was the duty of defendant to have placed a railing along the edges of the embankment, to protect passers. As plaintiff's horses ran, the buggy was pulled to the side of the embankment and thrown over, injuring him seriously. The accident resulted from defendant's building such an embankment and then leavingit improperly exposed.

*On the trial the jury found for plaintiff $5,000.00; defendant moved for a new trial, which was granted, and plaintiff excepted.

The other facts will be found in the opinion.

L. J. Glenn & Son; McCay & Trippe, for plaintiff in error.

W. T. Newman; John L, Hopkins, for defendant.

Jackson, Judge.

This was an action on the case for damages for injuries to the person of the plaintiff grounded on an alleged unlawful and negligent grading of the streets of Atlanta. The case was before us on demurrer to the declaration, and it was then held that the declaration was good, because the declaration alleged that the city was negligent in constructing the embankment where plaintiff's horses ran away with the buggy and hurt him, in not providing it with necessary railings or other means of protection, and in not keeping the street in safe condition, and that such negligence was the real cause of the injury. 59 Ga, 544. When tried regularly before the jury, on its return to the circuit court, the jury found five thousand dollars for the plaintiff; the city moved for a new trial, the court granted it on all the grounds alleged in the motion, and the plaintiff appealed to this court by writ of error.

The question is, did the court err in granting the new trial on any ground taken in the motion therefor?

1. Those grounds are that the verdict is against the law and the evidence, and against the charge of the court on various parts of the charge extracted therefrom and incorporated in the motion. No exception is taken in the motion to the charge, or any portion of it, as erroneous. The case therefore made in the exceptions grounded on the motion, is nothing more or less than this: Is the verdict so clearly *legal and so strongly supported by the evidence that this court is required to say that the superior court abused the discretion with which the law invests that court, of granting a new trial on the ground that the verdict is against the law and the evidence? We think not. We think that on the points on which this court put the case in affirming the judgment overruling the demurrer of the city of Atlanta to the plaintiff\'s declaration, to-wit, on the twopoints: first, was the city negligent? and secondly, did that negligence really cause this injury? the court did not abuse its...