Enright v. City of Atlanta , 78 Ga. 288 ( 1886 )

Jackson, Chief Justice.

This action is brought by Patrick Enright to recover damages from the city for injuries by falling into a hole on the sidewalk of Fort street. The jury, under charge of the court, found for the defendant, and the plaintiff, being denied a new trial, excepted and brings the case to this court, assigning for error the grounds of the motion for a new trial.

1. Some of the grounds of the motion cannot be considered because the error is not specified. Where an .exception to a part of the charge embraces more than one issue of law, the plaintiff in error must specify therein on which one he assigns error, and for what reason, unless the whole part excepted to be erroneous. Thompson vs. Feagin, 60 Ga. 82. This covers the 5th, 8th, 9th and 14th grounds of the motion.

2. Where the jury fail to find any damage at all, errors alleged as to the measure of damage will not be considered, unless they show bias or unfairness generally in the charge, or some other bearing on the case besides the measure of damage; and if so, that particular reason for such exception must be specified. In none of the grounds of the motion in respect to damages is there such a specification. This applies to the 11th, 12th, 13th and 14th grounds. The contention of counsel for plaintiff in error was that these charges showed bias and one-sidedness in the charge; but such contention orally at this bar is not specified in any of the above grounds. The error must be specified plainly in the assignment, to be heard before this court. Code, §4251.

3. There was no error in admitting evidence of repeated drunkenness for some years before this misfortune of plaintiff in error, and even afterwards, for the purpose of throwing light on the issue whether or not he was under the influence of spirituous liquors that night, the judge having cautioned the jury that unless the plaintiff was under the effects of liquor that night, such testimony could not affect his case.

4. There was no error in overruling the motion on the ground alleged, that counsel for the city, in questioning plaintiff on cross-examination, called Mm familiarly “Pat,” it tending, as counsel insisted, to lower his client in the jury’s estimation. We cannot tell whether it did lower and prejudice him or not. We cannot think it hurt him. It merely showed that the city’s counsel knew Pat well, apparently, and the appellation showing intimacy, and the counsel being a gentleman of the bar and of character, it may have had the tendency to elevate Pat in the jury's estimate. But this court does not interfere with such matters of taste in conducting the examination of witnesses. The presiding judge will manage such matters unmolested here, unless some gross outrage to the party be made very apparent, and damage resulting to his case plainly appear.

5. We cannot see error in the charge that, if the injury was a pure accident, caused neither by the negligence of the city nor that of the plaintiff, there could be no recovery. It must be so, because it is only negligence in itself, through its officers and agents, that makes the city liable; and if neither party be negligent, of course the city is not.

6. Whilst we agree with counsel for plaintiff in error that the time during which the trouble on the sidewalk existed appears to us to have been long enough to charge notice on the defendant of the condition of this sidewalk, yet we cannot say that the charge on that point is wrong. That charge leaves it to the jury to say whether or not, from the evidence, the time was sufficient to show negligence. These issues of negligence are peculiarly for the jury, and while this court did hold that two or three weeks were sufficient to show notice and want of diligence, in the case of The City of Atlanta vs. Perdue, 53 Ga. 607, yet it did not hold that the presiding judge should prescribe in his charge the length of time for the presumption of negligence in not taking notice, and control the finding of the jury on this issue involving negligence in the city. We conclude that there is no error in the 11th ground of the motion. Besides it contains two paragraphs, and which is the error of law assigned nowhere appears. So the assignment itself is not specified plainly.

7. The 6th ground of the motion is that the court erred in the charge that, “ If the plaintiff was not in the use of ordinary care and diligence while walking along said street in the night-time, to avoid injury, he cannot recover.” There is more trouble in this charge, and hints to the same effect elsewhere, than in anything else in the case. There is no sufficient assignment of anything looking that way except in this ground. Standing by itself, it is not as clearly the law as it should be. Doubtless the learned judge meant that, if he was not in ordinary care by which he could have avoided the injury; and elsewhere he does so charge, laying down the law with perfect accuracy, where he says that though the plaintiff was negligent and contributed to the injury thereby, yet unless his contributory negligence caused the injury, he could recover; and further, that if by ordinary care he could have avoided the consequence of the city’s negligence, then he cannot recover. Inasmuch as the judge certifies these grounds of the motion as corrected and read in the light of the entire charge, and as elsewhere he draws the distinction between contributory negligence and that which actually caused the injury, or that want of care which merely contributed to his injury and that which, had he exercised it, would have saved him from all injury, we conclude to concur in his conclusion to overrule this 6th ground.

Had we been satisfied that the plaintiff in error was free from the effects of liquor on his brain, and hence his prudence that night in his traveling in the dark rapidly over an unknown sidewalk, ahead of all his companions, in the venture on which they were intent, though it seems they were more familiar than himself with the sidewalk, and that he could not have avoided the consequences by ordinary care and diligence had he been cool and self-possessed, we should probably have granted a new hearing on the 6th ground, because it is a paragraph of the charge to itself, and is not sufficiently guarded and might have misled. Our view of the law is that to prevent his recovery, he must have been not only lacking in ordinary care and diligence to avoid injury, but that by that ordinary care and diligence, had he used them, he could have avoided the injury. The way of the transgressor is hard, and frequent drunkenness, and the calaboose as its consequences, are calculated to make character for rashness and imprudence which tell disastrously upon the future of life, and with other disasters sometimes causes the loss of a lawsuit.

Judgment affirmed.