City of Brunswick v. Glogauer , 1924 Ga. LEXIS 347 ( 1924 )

Atkinson, J.

One ruling made by the Court of Appeals was: “While a municipal corporation may not fail in its duty to keep its sidewalks in repair by merely permitting them to exist with certain irregularities upon the surface of the pavement) yet where there is a defect, such as appears from the evidence in the case under consideration, which consists of a raised and irregular surface upon the sidewalk, caused by the root of an adjacent tree growing under the sidewalk and disarranging the tiles and causing one of them to project above the level of the sidewalk, which condition has been allowed to remain for a period of years, it is a .question of fact for the jury as to whether or not the city in maintaining the sidewalk in such condition was negligent.” In the petition for certiorari this ruling was alleged to be erroneous because: “There was no legal duty resting on the municipal corporation-to keep its sidewalks free from the defects which existed in this case, and its failure to keep its sidewalks free from such defects was not negligence, this as a matter of law, all the facts of this case considered, and the Court of Appeals erred in holding that it was a question for the jury in this case to say as to whether or not this was negligence on the part of the municipal corporation.” In a case of this kind it should be borne in mind that negligence of the defendant is one question and exercise of care by the plaintiff to avoid injury from the defendant’s negligence is another, both of which enter into the ultimate question of the defendant’s legal liability for the alleged injury. The assignment of error relates directly to the first. In this State the statutes declare that municipal corporations are liable “for neglect to perform . . their ministerial duties.” Civil Code (1910), § 897. ' Also: “If a municipal corporation has not been negligent in constructing or repairing the same, it is not liable for injuries resulting from defects in its streets when it has no notice thereof, unless such defect has existed for a sufficient length of time for notice to be inferred.” § 898. Also: “Ordinary diligence is that care which every prudent man takes of his own property of a similar nature. The absence of such diligence is termed ordinary neglect.” § 3471. The term, “negligent in repairing,” as employed in § 898, supra, denotes absence of ordinary diligence or care in the matter of maintaining the way in a reasonably safe condition for passage. In Herrington v. Macon, 125 Ga. 58, 61 (54 S. E. 71), it was said that a municipal corporation “is bound to use ordinary care to keep its public streets and sidewalks which are open for public use in a reasonably safe condition for passage.” This expresses a rule which is generally recognized in this State, founded on the statutes and common law (see Idlett v. City of Atlanta, 123 Ga. 821, 51 S. E. 709; Boney v. Dublin, 145 Ga. 339, 89 S. E. 197, Ann. Cas. 1918E, 176), and accords with rules that are applied in other States. Whether ordinary diligence has been exercised in any given instance must depend on the facts of the ease.

It is stated in 8 McQuillin on Municipal Corporations (Supp.), 8402, § 2785: “Slight or minor defects in sidewalks resulting in injury, generally speaking, do not establish municipal negligence.” In Keen v. City of Mitchell, 37 S. D. 247 (157 N. W. 1049, L. R. A. 1916F, 704), it was held that: “An open drain across a highway, 7 or 8 inches deep at the lowest point, and sloping gradually upwards from the center so that it covers 12 feet at the top, is not such a defect as to render the municipality liable for injuries resulting to one jostled oil a wagon when the front wheels go into the drain.” The case was on appeal from the trial court, in which the judgment for the plaintiif was reversed on the ground that the city was not negligent, because the depression in the street was of such a character that the city officials in charge thereof could not have reasonably foreseen or apprehended the probability of the happening of the accident to plaintiif by reason of the depression. In' the course of the opinion it was said: “Where an injury is alleged to have been occasioned by a defect in a street, the inquiry should be, not was there some defect in the street? but was the street, in the condition in which it is proven to have been, in a reasonably safe condition for travel in the ordinary mode at the time the accident happened? and was the accident the natural and probable result of the use of the street in that condition,— one that could have been foreseen by those charged with the duty of maintaining the street? And, where an injury results from an alleged defect which is not of itself of such dimensions or character as to make an accident probable, it does not justify the submission to the jury of the question of the city’s negligence. Bohl v. Dell Rapids [15 S. D. 619]; Beltz v. Yonkers, 148 N. Y. 67, 42 N. E. 401; Ibbeken v. New York, 94 N. Y. Supp. 568; Grant v. Enfield, 11 App. Div. 358, 42 N. Y. Supp. 107; Hamilton v. Buffalo, 173 N. Y. 72, 65 N. E. 944, 13 Am. Neg. Rep. 173; Morgan v. Lewiston, 91 Me. 566, 40 Atl. 545, 4 Am. Neg. Rep. 268; Clifton v. Philadelphia, 217 Pa. 102, 9 L. R. A. (N. S.) 1266, 118 Am. St. Rep. 906, 66 Atl. 159, 10 Ann. Cas. 537; Dayton v. Glaser, 76 Ohio St. 471, 12 L. R. A. (N. S.) 916, 81 N. E. 991; Elam v. Mt. Sterling, 132 Ky. 657, 117 S. W. 250, 20 L. R. A. (N. S.) 512, and note, pages 598 to 618. In Beltz v. Yonkers, where the alleged defect was a hole 2inches deep, 7 inches wide, and 2 feet long in a stone sidewalk, the New York Court of Appeals, among other things, said: ‘There are very few, if any, streets or highways that are or can be kept so absolutely safe and perfect as to preclude the possibility of accidents; and whether in any case the municipality has done its duty must he determined by the situation and what men knew about it before, and not after, an accident. When the defect is of such a character that reasonable and prudent men may reasonably differ as to Avhether an accident could or should have been reasonably anticipated from its existence or not, then the case is generally one for the jury; but when, as in this case, the defect is so slight that no careful or prudent man would reasonably anticipate any danger from its existence, but still an accident happens which could have been guarded against by the exercise of extraordinary care and foresight, the question of the defendant’s responsibility is one of law. Assuming that the defendant’s officers were men of reasonable prudence and judgment, could they, in the . . exercise of these qualities, have anticipated this accident or a similar one from the existence of this depression in the walk ? They could undoubtedly have repaired it at very little expense, but the omission to do so does not show or tend to show that they were negligent, unless the defect was of such a character that a reasonably prudent man would anticipate some clanger to travelers on the walk if not repaired. If the exist- • enee of such a defect is to be deemed evidence of negligence on the part of the city, then there is scarcely any street in any city that is reasonably safe within the rule; and when accidents occur, the municipality must be treated, practically, as an insurer against accidents in its streets. The law does not prescribe a measure of duty so impossible of fulfilment, or a rule of liability so unjust and severe. It imposes upon municipal corporations the duty of guarding against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care. But when an accident happens by reason of some slight defect from which danger was not reasonably to be anticipated, and which, according to common experience, was not likely to happen, it is not chargeable with negligence.’ In Dayton v. Glaser, involving an alleged defect in a street consisting of a depression in a pavement 4 inches deep, extending over 3 or 4 square feet of surface, the Supreme Court of Ohio held that such defect was not of sufficient magnitude to render such street not in a reasonably safe condition for travel, and that negligence could not be imputed against the city by reason of the existence of such defect, on the ground that accidents could not reasonably be anticipated as happening by reason of such slight defect. In Grant v. Enfield, 11 App. Div. 358, 42 N. Y. Supp. 107, where the injury resulted from a hole in the highway, basin-like in shape, several feet in length, and 4 inches deep, it was held that the city could not anticipate accidents which might happen by reason thereof. In Morgan v. Lewiston, 91 Me. 566, 40 Atl. 545, 4 Am. Neg. Rep. 268, where the plaintiff was injured by stumbling at the junction of two sidewalks, where there was a difference of 6 inches in grade, the court ruled, as a matter of law, that the sidewalks were in a reasonably safe condition for travel, and that negligence could not be imputed to the city by reason of the existence of such defect. In Messenger v. Bridgetown, 31 Can. S. C. 379, a mound of earth 8 inches in height in d public street was held not to constitute a defect of sufficient magnitude to charge the city with negligence in failing to keep its streets in a reasonably safe condition. In Clifton v. Philadelphia, 217 Pa. 102, 9 L. R. A. (N. S.) 1266, 118 Am. St. Rep. 906, 66 Atl. 157, 10 Ann. Cas. 537, where an injury occurred by stepping into a rut some 5 or 6 inches deep and several feet long, across a highway, it was held that the accident had happened by reason of a slight defect from which danger was not reasonably to be anticipated, and that the municipality was not chargeable with negligence, the duty imposed by law only being to exercise ordinary care to see that the highway is safe for traveling.”

It will be observed that the above decision had reference to a defect in a street where an injury resulted to a person riding in a vehicle, but it was recognized that the principles applied would apply also in cases of an injury to pedestrians where the defect was in the sidewalk. Some of the cases cited in the opinion were of that character. In Terry v. Village of Perry, 199 N. Y. 79 (92 N. E. 91, 35 L. R. A. (N. S.) 666, 20 Ann. Cas. 796), it was held that “A municipal corporation is not liable for injury to a pedestrian, caused by his falling on a sidewalk because of a depression due to the setting of one edge of a concrete square in the walk 1 -% inches below the level of the adjoining square, although one or two persons had tripped on the unevenness before, and one of the trustees of the municipality had slightly turned his ankle at the spot, and reported the fact to the board of trustees.” In the opinion the language quoted as above from Beltz v. Yonkers, was set forth, and the principles therein announced were applied. Another case cited and applied was Butler v. Oxford, 186 N. Y. 444 (79 N. E. 712). In that case the facts were that “the surfaces of a stone and an adjoining dirt sidewalk were not flush at their junction, the surface of the former rising above that of the latter by a distance of about 2-% inches in the center of the walk, and about 5 inches on the outer edge thereof. The plaintiff, in passing over the dirt walk upon the stone walk in the nighttime, stumbled against the projecting edge of the stone, fell and met with the injury for which the action was brought.” It was held that the defect was too insignificant for its existence to be the foundation of a liability upon the part of the city for an injury resulting to a pedestrian who received -a fall on account of the defect. In City of Richmond v. Schonberger, 111 Va. 168 (68 S. E. 284, 29 L. R. A. (N. S.) 180), it was held: “A municipal corporation is not liable for injury to a pedestrian who, in attempting to cross a street, stumbles and falls because of a piece of stone projecting 2 inches above the level of the crosswalk, where the walk is constructed of two level strips of paving stone, with the inter-veiling space filled with loose stones, and covered with dirt.” The opinion quoted approvingly the following from Bigelow v. Kalamazoo, 97 Mich. 121 (56 N. W. 339): “Even in our most prominent thoroughfares, paved in the most approved manner, curbs must be carried, and at the crossings they are from 2 to 6 inches higher than the pavement. The curb must be left bare, and inattentive people be liable to stumble, or, as is frequently done, a plank is placed upon an incline, upon which pedestrians carelessly advancing are liable to slip. In either case there is the minimum of danger. The walk is not absolutely safe, but it cannot be said that it is not in a reasonably safe condition. The same is true of nearly all of our alley crossings. Gutters are necessarily left for the passage of water. These crossings are not absolutely safe, but they may be reasonably so. Neither streets, sidewalks, nor crosswalks, can be constructed upon a dead level. People are liable to stumble over a Persian rug upon a parlor floor, and streets cannot be made less dangerous than drawing rooms. . . Cities are not required to keep streets in a condition absolutely safe for travel. A crosswalk must be reasonably safe, — reasonably safe in view of the purpose for which it is constructed, the necessary uses of the street, and all the varying conditions.”

In City of Lexington v. Cooper, 148 Ky. 17 (145 S. W. 1127, 43 L. R. A. (N. S.) 1158), it was held: “A niche in a sidewalk to enable it to pass a standing tree, which, after the tree is removed, is filled with dirt and sodded, so as to leave the surface 2-% inches below the surface of the walk, is, as matter of law, not a defect which will render the municipality liable in case a pedestrian slips or stumbles over the unevenness and falls to his injury.” In the course of'the opinion it was said: “Under the facts, the trial court erred in not granting defendant’s motion for a peremptory instruction. The city is not a guarantor of the safety of pedestrians upon her sidewalks. It is enough if the streets are kept in a reasonably safe condition for those exercising ordinary care for their own safety. Customarily, of course, the question of whether a sidewalk or street is in an ordinarily safe condition is for the jury; and yet it would be manifestly begging the question to say that, no matter how slight the inequality of surface, or how immaterial the obstruction, the case should go to the jury. Covington v. Belser, 137 Ky. 125, 123 S. W. 249. In the case of Louisville v. Uebelhor, 142 Ky. 151, 134 S. W. 152, the action was to recover because of injuries sustained by stepping into the depression worn by wagon wheels between the adjoining flat ends of crossing-stones. The evidence of the plaintiff showed that the depression was 4 or 5 inches deep, while the evidence of the city showed that it was 1 or l-1/^ inches deep. This court said that, if it were only an inch and a half or 2 inches in depth, a smooth worn place in the stones, it would not be such a condition as to indicate negligence on the part of the city. The opinion further remarked the customary statement that the city had no duty beyond that of keeping its streets reasonably safe. It added that there must be some point short of perfection that is not actionable negligence; that such depressions of an inch or so are quite common in all cities; and that that which is so customary may be'regarded as ordinarily safe and as the standard.” See also Gastel v. City of New York, 194 N. Y. 15 (86 N. E. 833, 128 Am. St. R. 540, 16 Ann. Cas. 635).

In the case of City of Atlanta v. Bellamy, 72 Ga. 420, a verdict was returned for the defendant. The plaintiff’s motion for a new trial was granted, and the defendant excepted. The judgment of the trial court was affirmed on the ground that a discretion was vested in the trial court with which the Supreme Court would not interfere unless the discretion was palpably abused. The statement of facts contains the following: “On the trial, it was proved that plaintiff stepped into a depression or hole in the sidewalk, while passing along, about dusk in the evening, fell and was injured. The evidence as to -plaintiff’s habits of sobriety and the nature and extent of the injury was conflicting. As to the character of the hole into which plaintiff stepped, he testified as follows: ‘The hole in the sidewalk, which caused my fall, was about four inches wide, I think, and was as long as the flagstone was wide, say about eighteen inches long, and I should judge it was several inches deep. It was about dusk when I stepped on the edge of the hole, and I did not see the hole. I don’t think I ever saw the identical hole before. At the time I fell, I was walking in ordinary way.’ Lynch, a witness for the plaintiff, described it as follows: ‘The hole had been there seven or eight months before the Saturday evening on which I saw a man fall and two negroes pick him up. A common brick would more than fill up the hole. It was where two flagstones did not exactly come together, and most of the time a brick was in it, and frequently it was filled up with dirt, but the water Would occasionally wash it out. The hole was not as deep as a brick of common size, and about as long. The hole was longer than a brick, say about nine or ten inches, about four inches wide, and not quite as Jeep as a brick is thick, less than two inches deep. I filled the hole up myself several times, but it would wash out again. The flagstones did not fit up close at first, and my opinion is that the hole was there from the time the sidewalk was made/ ” The opinion of the court follows: “This is the first grant of a new trial in this case, which we think was hardly warranted by what is disclosed in the record. There was some evidence, however, upon which the jury might have found differently, though its decided weight, as it appears to us, is in favor of the verdict. It is impossible to place ourselves in the position of the able and experienced judge who presided at the trial, and to have communicated to us what occurrences, during its progress, may have influenced his action; doubtless he had what he deemed sufficient and satisfactory reasons for his course. He alone can exercise a sound discretion in granting’ or refusing a new trial whether the verdict is sustained by the decided and strong weight of the evidence or by slight evidence only. It would require an extreme case to justify our interference with the exercise of this discretion — one in which an abuse of the power was palpable. This is the invariable rule of our action. We think it conservative, prudent, and wise, and although in some instances it may work hardship, yet in the vast majority it tends to the maintenance of right and justice. We hesitate not to say, from what we can gather from the proceedings before us, that we would not have disturbed this verdict; but, as before remarked, we had none of the advantages of observation possessed by the judge who conducted the trial and saw and heard all that transpired in its progress. We think that no encouragement should be given to actions brought against towns and cities for the recovery of damages resulting from slight depressions' or elevations made by displacing paving or flagstone, or bricks used in the construction of sidewalks and streets. As was remarked by Mr. Justice Crawford, in Rivers v. The City Council of Augusta, 65 Ga. 378 [38 Am. R. 787], ‘Calamities and accidents are common to all; but because they occur, it by no moans follows that such as may be so unfortunate are entitled to recover compensation in damages out of some person, either natural or artificial, who may be able to respond, notwithstanding it appears that such impressions are beginning largely to prevail.’ We cannot entertain the idea that ‘municipal corporations are insurers against accidents upon streets and sidewalks, or that every defect therein, though it may cause the injury sued for, is actionable. It is sufficient if the streets (which include sidewalks and bridges thereon) are in a reasonably safe condition for travel in the ordinary mode, by night as well as by day.’ To require higher care and diligence at the hands of the public authorities would exceed the resources at their command, and would entail upon the community an unsupportable burden. It is impossible to ascertain speedily when the bricks, paving, and flagstones on the streets are out of place, and to keep promptly in repair at all times trifling defects resulting from such causes. In all suits for damages resulting from such causes, these considerations should have weight with juries, whose peculiar province it is to pass upon questions of negligence, -under directions from the court.”

In City of Atlanta v. Brown, 73 Ga. 630, the verdict was in favor of the plaintiff, and the defendant’s motion for new trial was overruled. The ground of negligence alleged was stated by the court as follows: “The plaintiff brought suit to recover damages from the City of Atlanta for a personal injury, which she alleged was done her by reason of a fall, while she was walking, with all care and caution, on the north side of East Mitchell street in said city; that this fall was on a rough sidewalk, which had been made of bricks, and in consequence of the rough and broken condition of the same and tlie steep grade of an adjoining stone pavement; that the bricks which composed the said sidewalk had been torn up and loosened from their positions, and it was in an unsafe condition; that the city, though knowing at that time, and previous thereto, the condition of the sidewalk, had, through gross negligence, failed to repair it, so as to make it a reasonably safe way for persons to pass oyer.” The judge stated in the order overruling the motion for new trial: “That, in his judgment, the alleged defect was or should not be an actionable defect, as to require the city to remedy such slight imperfections in the sidewalks would be to impose upon it an extraordinary degree of diligence; but as he had fully and fairly charged the jury as to the defect being actionable, and they having found in favor of the plaintiff on that question, he felt that he should not disturb their verdict.” In the opinion it was said: “It is insisted that this was not an untrammeled and free exercise of the judge’s discretion; that to refuse the motion, with such impressions resting upon his mind, was a virtual, if not actual, abuse of such discretion. To this, however, we do not assent; it seems to us that it does not amount to an abuse, but is rather a reluctant forbearance to exercise his discretion, although strongly inclined to do so, in favor of the defendant. Upon the whole, he concluded to let the verdict stand, and we are to look to this conclusion as the exercise of his discretion, rather than to the reasons that led him to hesitate, before interfering with the finding of the jury. A new trial was granted by the judge of the lower court in The City of Atlanta v. Bellamy, 72 Ga. 420, and we refused to interfere, although we were well satisfied that the verdict was supported by the law, and was in accordance with the decided weight of the evidence. Had we been on the jury, we would have returned the same verdict; but as the discretion to grant or refuse the new trial was in the presiding judge, and we differed with him only as to the propriety of its exercise, even in that extreme case we could not say that it had been palpably abused, and did not feel authorized to interpose. We could, perhaps, interfere with more propriety in a case where the verdict was decidedly and strongly against the weight of evidence and a new trial had been refused, than in one where; under such circumstances, it had been granted. There are certainly decisions justifying interference in the case suggested. 37 Ga. 557; 35 Id. 271. Discretion in refusing a new trial should not be arbitrarily exercised. 54 Id. 224; 31 Id. 365; 30 Id. 212. But in cases of a preponderance of evidence, this court has never controlled the discretion of the lower court in granting or refusing a new trial. Code, §§ 3713, 3717, and citations. Yielding our hearty assent to this rule, we must decline to interfere with the exercise of discretion in refusing a new trial in this instance. The evidence here is conflicting upon the main points in controversy, and when closely, scrutinized is as much, or perhaps more, in favor of than against the verdict.”

In Dempsey v. City of Rome, 94 Ga. 420 (20 S. E. 335), it was held: “The evidence showing that the plaintiff was injured at night by getting his foot fast in a hole which had existed for two weeks or longer in a plank crossing upon one of the most frequented streets of the city, the plaintiff at the time using the crossing as one of the public for a footway in passing over it, the case was one for submission to the jury on the question of negligence by the city authorities in having and leaving the crossing in that condition. The evidence further showing that the hole extended longitudinally along the crossing, and was about ten or fifteen inches long, three inches wide, and two or three inches deep, and that the plaintiff had observed it a week or two before he was injured, and that at the time he stepped into it he ‘had his hands in his pants pockets, was walking very peart, and wasn’t paying any attention,’ it was a question for the jury whether, under these circumstances, he was negligent in not thinking of the defect in the crossing, looking out for it and taking care for his own safety. It was error to grant a nonsuit.” It would seem on principle, as stated in the decisions from other courts and especially the decision in City of Lexington v. Cooper, supra, and the views expressed by this court in City of Atlanta v. Bellamy, supra, with reference to municipal liability for minor defects in sidewalks of towns and cities, that the size and character of the defect in the sidewalk which caused Mrs. Glogauer to fall and be injured were such that, in the absence of other evidence to show its dangerous character, such as that other pedestrians using the sidewalk had suffered accidents from the defect, the city could not reasonably have anticipated her • injury from such defect, and consequently, that the omission of the city to repair the sidewalk was not such a failure to exercise ordinary care as would show actionable negligence. It would seem that to hold the city liable for an injury caused by such a defect would be to require extraordinary care — a higher degree of care than the law exacts from the city as to the condition in which it should maintain its sidewalks, and that it should be held as a matter of law that the city was not negligent. But notwithstanding the views of the court in City of Atlanta v. Bellamy, which were reaffirmed in City of Atlanta v. Brown, supra, this court refused to disturb the discretion of the trial court in the matter of granting or refusing to grant a first new trial, which it would have been required to do had the defect been insufficient as a basis for a charge of negligence. In the Bellamy case, it was stated: “There was some evidence, however, upon which the jury might have found differently [for the plaintiff], though its decided weight, as it appears to us, is in favor of the verdict [for the defendant].” In the Brown case, 73 Ga. 630, it was said: “The evidence here is conflicting upon the main points in controversy, and, when closely scrutinized, is as much, or perhaps more, in favor of than against the verdict [for the plaintiff].” As appears from the reports of the cases which are fully set out above, the defects in the sidewalks which produced the injuries were minor defects. Those decisions ■ hold in effect that the minor defects under consideration were sufficient upon which to submit to the jury the question of negligence of the city in allowing the sidewalk to remain in such condition, and to support a finding for the plaintiffs. Each of them was rendered by all of the Justices of the court as it was then constituted; and never having been overruled, they are binding as precedents. While the defect involved in the present case is somewhat different from those involved in the cases mentioned above, they are all minor defects so nearly similar that the cases cannot be distinguished upon principle. Accordingly the court is constrained to hold that the existence of the defect in the present case for the length of time and under the circumstances as disclosed by the evidence was sufficient to carry the case to the jury on the question of the defendant’s negligence.

Another ruling made by the Court of Appeals was: “A person injured by stumbling over a raised and displaced tile projecting above the level of the sidewalk, over which such person, who had the capacity to see, was traveling in broad daylight, is not barred from a recovery upon the. ground of contributory negligence, where it appears that such defective condition was to some extent obscured by a shadow, and that such person had no actual knowledge of the existence of such defect in the sidewalk.” In the petition for certiorari that ruling was alleged to be erroneous because: “There is no sufficient evidence that the defective condition was to some extent obscured by a shadow, and there is no evidence that Mrs. Glogauer had no actual knowledge of the existence of such defect, the evidence showing that she must have had such knowledge or that by the exercise of ordinary care she could have had such knowledge, and that she was therefore guilty of contributory negligence if there had been any negligence on the part of the city.” The evidence was insufficient to show that the defect was obscured by any shadow. It was alleged in the petition that a shadow from the pile of bricks stacked along the east side of the sidewalk tended to obscure the existence of the defect, but this was denied by the answer. The testimony of the plaintiff showed that the sidewalk in question ran north and south, and that the accident occurred at 12 o’clock noon on December 29th. The only other witness who testified on the subject as to time stated that it was about 12:20 o’clock. In these circumstances there could not have been a shadow from the stack of bricks which extended along the east edge of the sidewalk. The plaintiff testified in one place: “ Those bricks being' piled up there had the effect of casting a shadow on the sidewalk,” but did not testify that a shadow was produced in any other way, nor did any other witness so testify. At another place the plaintiff testified: “Those bricks I saw there were laid across, but you could not see a thing. With the sun shining in your face you could not have seen a shadow.” The plaintiff also testified to the correctness of the photographs that were introduced in evidence, which was the only other evidence that could have been looked to to ascertain whether a shadow existed from trees or other causes. The photographs were taken at a subsequent date which was not disclosed by the evidence, nor was the houi" of the day in which the photographs were taken disclosed; but whatever the date or hour of the day, they failed to disclose any shadows. In these circumstances the plaintiff’s evidence did not authorize an inference that the defect was obscured by a shadow. The decision of the Court of Appeals pronounced as a matter of law that in the circumstances stated in its decision the plaintiff would not be barred from a recovery upon the ground of contributory negligence. This was an erroneous ruling. Contributory negligence is generally a question for the jury; but whether or not the evidence upon this subject was sufficient to carry the case to the jury will not be decided) because that question was not made in the motion for new trial that was under review, nor by the assignments of error upon the judgment of the Court of Appeals.

Another ruling made by the Court of Appeals was: “Assuming that the sidewalk lay north and south, and that a stack of brick was on the eastern side, and that therefore at the time when the plaintiff was hurt it was impossible for such brick to cast a shadow towards the west after the noon hour, this fact will not conclusively rebut the testimony of a witness to the effect that the brick caused a shadow over the unrepaired portion of the sidewalk, when it appears from the evidence that there were trees along this portion of the sidewalk and a fence to the west, from which facts it could be inferred that the plaintiff’s testimony as to the existence of the shadow was true, and a jury could infer that the plaintiff’s attributing such shadow to the bricks was a mistake.” In the petition for certiorari this ruling was alleged to be erroneous because : “There was not only no sufficient evidence that a shadow was cast on this defect by the pile of brick, but there was no evidence that there were tr,ees along this portion of the sidewalk that might have cast such a shadow; the evidence being that there was only one tree near this place, and the evidence showing that such a shadow as might have hidden or have obscured this defect could not have been cast by this tree; and the Court of Appeals erred' in finding that such a shadow could have been cast at the time and place by such a tree or trees.” This criticism upon the opinion is well founded. The facts bearing upon the subject sufficiently appear in the preceding division.

Another ruling made by the Court of Appeals was: “The plaintiff, a widow at the time of the trial, although a married woman at the time of the injury and the filing of the suit, who was seeking to recover for personal injuries alleged to have been caused by a defect in a sidewalk, was entitled to recover for any damage which she might have sustained by reason of impaired earning capacity, since it appears that no objection was urged that she could not recover for such item of damage in the pending suit. An instruction by the trial judge that the jury must compute such damage from the time of the trial was not error as against the defendant. The evidence made such an issue; and the charge was not further objectionable upon the ground that it was not adjusted to the evidence.” In the petition for certiorari this ruling was alleged to be erroneous because: “The objection made in the motion for new trial was that the trial judge should have charged the jury that the plaintiff could recover for loss of earning capacity, etc., only from the date of the death of her husband, instead of which he apparently charged that she might recover for loss of earning capacity from the date of the accident; at least the language of the charge in this respect was obscure and ambiguous and calculated to mislead the jury; and the duty was upon the judge to charge the law correctly and plainly, whether specifically requested or not, that is, that she could only recover for loss of earning capacity from the date of the death of her husband, it appearing from the evidence that they were living together at the time of the accident and so continued up to his death, three days before the trial of this case, with no evidence of any consent on his part that her earnings should be her separate property or estate; and the Court of Appeals erred in not passing specifically on this question, as made in the 4th ground of the amended motion for new trial. The language of the charge could not be held plainly to mean, in connection with the context of the charge, that the jury must compute such damages from the time of the trial, and the Court of Appeals erred in holding that it did; and the Court of Appeals also in this paragraph erred in holding that the charge was adjusted to the evidence.” Another ruling made by the Court of Appeals was: “The financial inability of the municipality to keep its sidewalks in repair will not excuse it in negligently allowing the sidewalks to remain unrepaired.” In the petition for certiorari this ruling was alleged to be erroneous, because: “The Court of Appeals erred in holding that the financial inability of the municipality to keep its sidewalks in repair would not excuse it in negligently allowing the sidewalks to remain unrepaired; and the Court of Appeals erred in not sustaining the 5th ground of the amended motion for new trial, which charges that the trial judge erred in not charging the jury that under the evidence they could, in determining the question of negligence or want of negligence on the pert of the City, take into consideration the number of miles of sidewalk in the city at the time of the injury, and the financial inability, if such was the case, of the City of Brunswick at that time to keep all the sidewalks in good repair; and the Court of Appeals erred in not passing on this ground of the motion for new trial.” These divisions of the opinion relate to grounds of the motion for new trial which complain of the omission of the court to charge certain contentions of the defendant without any written request therefor. The contentions referred to were not made in the pleadings, but rested only on the evidence that was introduced on the trial. It has been held by this court: “Where in a civil case the judge, in stating the contentions of the parties, fully and fairly submitted the issues raised by the pleadings in the case, the failure of the court, in the absence of a request, to instruct the jury upon a contention of one of the parties not raised by the pleadings, although supported by some evidence in the record, is not cause for a new trial. Martin v. Nichols, 127 Ga. 705 (56 S. E. 995); Cordele Sash &c. Co. v. Wilson Lumber Co., 129 Ga. 290 (2) (58 S. E. 860); Hewitt v. Lamb, 130 Ga. 709 (2) (61 S. E. 716, 14 Ann. Cas. 800).” McLean v. Mann, 148 Ga. 114 (2) (95 S. E. 985); Bridges v. Williams, 148 Ga. 276 (2) (96 S. E. 499). Under this rule, the Court of Appeals would not have been required to reverse the judgment of the trial court. While the decision of the Court of Appeals was not accurate, the judgment will not be reversed upon these grounds alone.

Another ruling made by the Court of Appeals was: “The fact that many other people had safely passed over the same sidewalk when in the same condition as when the plaintiff was injured, and the fact that no claims for injuries to persons by reason of defective sidewalks had been filed against the city prior to the plaintiff’s injuries and while the sidewalk upon which the plaintiff was injured was in the same defective condition, are immaterial to throw any light upon the question of ordinary care upon the part of the city, and were in no wise relevant to the issues in the case.” In the petition for certiorari this ruling was alleged to be erroneous because: “The Court of Appeals erred in holding, 1st, That the fact that many other people had safely passed over the sidewalk where the injury occurred, when in the same condition as when the plaintiff was injured, was immaterial and irrelevant, the contention of petitioner being that evidence showing or tending to show that the sidewalk in question and under the same conditions was ordinarily safe for pedestrians was relevant and admissible ; and, 2nd, In holding that the fact that no claims for injuries to persons by reason of defective sidewalks had been filed against the city prior to plaintiff’s claim Was immaterial and irrelevant, the contention of petitioner being that all such evidence was relevant and admissible for tbe purpose of showing or tending to show that the sidewalks of said city, which were generally in the same condition as the sidewalk where and when the injury occurred, were ordinarily safe for pedestrian travel.” In the case of Terry v. Village of Perry, supra, it was said: “In cases where the depression or difference in grade is slight, even where, under the rules of this court, they are so slight that, as a matter of law, they are not ordinarily sufficient on which to base a recovery against a municipality, evidence of the experience of others in tripping or falling over the same is competent for the purpose of showing, if true, that there is something peculiar or unusual about the formation of the difference in grade or of the depression that makes it dangerous to an extent that an ordinarily prudent person in charge of sidewalks, with knowledge of such peculiar depression, would repair it.” To the same effect is the decision of Gastel v. City of New York, supra. At the foot of the opinion is a list of cases cited as holding such evidence admissible, and another list applying the contrary doctrine. Included in the first list is the case of Gilmer v. Atlanta, 77 Ga. 688, where it was held: “Where suit was brought against a municipal corporation for damages incurred by reason of certain roots of a tree having been negligently left projecting above a sidewalk, in which roots a foot of a pedestrian at night was caught, causing her to trip and fall, and injuring her, it was admissible to show by another person that he was tripped and thrown down some days previously by the same roots at the same place. . . In cases of doubt as to the admissibility of evidence, the current of authority in this State is to admit it and leave its weight and effect to be determined by the jury.” This case was cited approvingly in Goodman v. State, 122 Ga. 111 (49 S. E. 922). If it would be admissible on the question of the dangerous character of the defect in the sidewalk to prove that another person passing along the way at a subsequent time stumbled over the obstruction, upon similar reasons it should be admissible in such case to show where another person under like circumstances or a large number of persons under like circumstances walked' along the way and did not suffer any accident on account of the defect. The trial court should have admitted the evidence, its weight to be determined by the jury. See also City Council of Augusta v. Hafers, 61 Ga. 48 (3) (34 Am. R. 95), where it was held: “The question being as to whether the system adopted by the city in regard to allowing cellars on its sidewalks was reasonably calculated to insure the safety of those who travel thereon, evidence that children upon different occasions had previously fallen into such openings was admissible.”

Another ruling made by the Court of Appeals was: “Where two witnesses have made conflicting statements in their testimony, it is not error for the court to refuse to allow one of the witnesses, upon cross-examination, to state whether or not the other witness had testified correctly.” In the petition for certiorari this ruling was alleged to be erroneous because: “While the general statement of the law as made in this paragraph may be true, yet the Court of Appeals erred in applying it to the facts in this ease, because the plaintiff in her direct examination had sworn that no other woman was with her at the time of the accident; following after her testimony a witness introduced in her behalf had sworn that another woman was with her at that time; thereafter, upon the plaintiff being recalled in her own behalf, she was on cross-examination asked if her witness had been mistaken in stating that another woman was with her at the time of the accident; the trial judge ruling out this question on the ground, not that it was trying to impeach the testimony of the other witness, but that this matter had already been gone into, whereas it had not been gone into in the light of this testimony of plaintiff’s witness that there was such another woman; and the Court of Appeals erred in not holding that this question was relevant, material and admissible.” While the trial judge put his ruling upon the ground that this matter had been previously gone into and while this ruling was exclusively put upon that ground, we do not think that a new trial ought to be granted on this ground, because it is not proper to undertake to prove by one witness that the testimony of another witness was not correct.

The last assignment of error relates to the sufficiency of the evidence to support the verdict; but as the judgment affirming the judgment of the trial court will be reversed and another trial will be necessary, at which the evidence may not be the same, no ruling will be made upon this assignment of error.

Judgment reversed.

All the Justices concur, Bussell, G. J., specially.