Gilmer v. City of Atlanta , 77 Ga. 688 ( 1886 )

Jackson, Chief Justice.

Mrs. Gilmer sued the city of Atlanta for damages incurred by reason of certain roots of a tree having been negligently left projecting above the sidewalk, in which, at night, her foot was caught and she was tripped up and fell, injuring herself badly thereby. The jury found against her, and on the denial .of a new trial, she excepted, and brought her case here.

1. We think her entitled to a new trial on the ground that evidence by another person, that he was tripped up and thrown down some days before by the same roots at the same place, was rejected. There are two lines of decisions on the point, one that the evidence is admissible; the other that it is not. The current of opinion in this State by this court is, that what sheds light on the truth of the transaction should go to the jury; that the doors should be open rather than shut to testimony; and that, in doubtful cases, the doors should always open, letting the jury pass upon the effect and weight to be given to such evidence.

The fact that another fell from the same cause is certainly a circumstance that the sidewalk will occasion falls; and that it occurred within a few days of that of plaintiff, renders the circumstance stronger as bearing on the issue she makes and which is on trial. What weight the jury may give it, we do not know. Whatever it may be, our view of the law of our State entitles her to have it.

2. The opinion of the witness was properly rejected: It is for the jury to determine from facts the condition of the sidewalk; it is not the sort of issue on which opinion of witnesses can aid the jury in determining, and the court properly rejected it.

We forbear to pass upon the question- which arose on the polling the jury. Having directed a new trial on another point, and that being a point not likely to arise again on the new hearing, it becomes unnecessary to decide it. Nor do we pass upon the merits of the case or indicate any judgment thereon, for the reason that the case is again to be tried,' and it ought to be tried de novo on facts, free from any opinion of this court on these facts, which may be supplemented by and wear a different face from those that may be added.

For plaintiff in error: 2 Thompson on Negligence, 801; 32 Vermont, 591; 11 Hun. 217; 42 Ill. 169; 52 N. H. 401; 33 Conn. 57; 55 Me. 439; 27 Conn. 631.

For defendant: 2 Thompson on Neg. 801; 1 Greenleaf, §52; 1 Gray, 510; 6 Cush. 396; 39 Me. 506 ; 52 Barb. 267; 7 Am. & Eng. Cor. Cas. 103; 33 N. J. L. 260; 9 Allen, 181; 107 Mass. 334; 44 N. H. 419; 46 Vermont, 135.

Judgment reversed.