100 S.E.2d 641
36885.Court of Appeals of Georgia.
DECIDED OCTOBER 18, 1957.
1. The evidence is sufficient to sustain the verdict in favor of the plaintiff.
2. Under the facts of this case, the court did not err in refusing to charge the principle of law of accident.
DECIDED OCTOBER 18, 1957.
Tort; injuries by fall into sidewalk excavation. Before Judge Alverson. Fulton Superior Court. July 2, 1957.
Neal Collins brought suit for damages against the City of Atlanta. The petition, omitting the formal parts, alleges substantially as follows: Paragraph 2: That the plaintiff was walking along the sidewalk at about 6:30 p. m. on June 21, 1955. Paragraph 3: That he fell into an open ditch approximately six feet deep which extended across the entire width of the sidewalk except approximately 18 inches. Paragraph 4: That the defendant had dug the ditch across a sidewalk which had been paved and maintained by the defendant for many years. Paragraph 5: That there were no barriers around the ditch except a concrete block 8 inches high, 8 inches wide and 16 inches long, and a red lantern. Paragraph 6: That the sidewalk was
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heavily traveled by the public; that the plaintiff was totally blind; that he was familiar with this sidewalk across which the ditch was dug. Paragraph 7: That the plaintiff was unable to see the lantern, the concrete block or the ditch because he was totally blind. (Paragraphs 8 and 9 do not show in the record before us.) Paragraph 10: That when the plaintiff fell into the ditch he suffered certain injuries which are described. Paragraph 11: That the plaintiff suffered and will continue to suffer severe shock and fright as a result of the fall and injuries. Paragraph 12: That the plaintiff will always be extremely apprehensive and fearful that pitfalls such as depicted here might lurk before him. Paragraph 13: That the sole and proximate cause of all the plaintiff’s damage and injury was the negligence of the defendant in leaving the ditch open and unguarded. Paragraph 14: That the defendant was put on notice of the plaintiff’s claim in compliance with Code § 69-308. The plaintiff prayed for damages in the amount of $25,000.
The plaintiff amended the petition as follows: “1. By striking paragraph 9 in its entirety and inserting in lieu thereof the following: `The barrier erected by the defendant as alleged in paragraph 5 was insufficient in height to prevent the plaintiff and other persons using the sidewalk from falling into the open ditch.'”
By a second amendment the plaintiff amended the petition as follows: “1. By striking paragraph 3 in its entirety and inserting in lieu thereof the following: `When he reached a point in front of 453 Mitchell Street, S.W., he fell into an open ditch approximately 6 feet deep, and which extended across the entire width of the sidewalk, there being a passageway of board of only approximately 18 inches.’
“2. At the time of the occurrence complained of, plaintiff was 47 years old and, according to the Carlisle Mortality Table, had a life expectancy of 23.17 years.
“3. Plaintiff’s injuries are permanent and will always cause plaintiff mental and physical pain and anguish.”
The defendant answered as follows: Paragraph 1 admits paragraphs 1 and 14 of the petition. Paragraph 2: Defendant neither admits nor denies paragraphs 2, 3, 6, 7, 10, 11 and 12 of the petition and demands strict proof thereof. Paragraph 3: Paragraphs
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4 and 5 are denied as pleaded. However, defendant admits that on June 21, 1955, it became necessary to make an excavation under the sidewalk in order to repair a sewer located thereunder. Defendant denies that the excavation extended completely across the sidewalk and denies that said excavation had no barriers and no warning devices as alleged. The defendant answered further by alleging that on the contrary the dirt from the excavation was piled on each side of the excavation to a height of not less than three feet and at a sufficient distance on each side of the excavation to prevent any prudent person, regardless of his eyesight, from falling therein; that a plank and concrete barricade was placed at the end of the excavation, forming a handrail to allow persons to pass around said excavation on the unexcavated portion of the sidewalk; that eleven lanterns were placed so as to completely surround the excavation for the purpose of warning pedestrians thereof; that by reason of the foregoing facts the defendant was guilty of no negligence towards the plaintiff, having exercised due care for the protection of the plaintiff and other pedestrians using said sidewalk; that upon the sewer being repaired the excavation was closed promptly on the following day, June 22, 1955, and the sidewalk was repaired. Paragraph 4: That paragraphs 8 and 13 of the petition are denied. Paragraph 5: Paragraph 9 of the petition is denied and for further answer the defendant shows that it did erect a barrier about the excavation of sufficient height and character to warn any prudent person of the excavation. Paragraph 6: That defendant shows that no act or omission on its part proximately caused or contributed to any injury and damage the plaintiff may have sustained, and on account thereof the plaintiff is not entitled to recover any sum from the defendant. Paragraph 7: The defendant further answered that the occurrence complained of was caused proximately and directly by the plaintiff’s negligence and that therefore the plaintiff is not entitled to recover. Paragraph 8: The defendant answered that the plaintiff was not exercising ordinary care for his own safety and that he was not entitled to recover. Paragraph 9: That the plaintiff by the exercise of ordinary care could have avoided being injured and damaged. Paragraph 10: That the negligence of the plaintiff himself equalled or preponderated
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any act or omission of the defendant in producing the occurrence of which complaint is made and that therefore the plaintiff is not entitled to recover. Paragraph 11: That the occurrence complained of was the result of an unavoidable accident, the defendant having exercised due care in the premises and for this reason the plaintiff is not entitled to recover.
The case proceeded to a jury, which resulted in a verdict in a verdict and judgment in the sum of $2,500 in favor of the plaintiff.
The defendant made a motion for a new trial on the general grounds and thereafter added one special ground by amendment. The court denied the motion for new trial, and it is on this judgment that the case is here for review.
The evidence shows substantially as follows: Neal Collins testified that he is blind; that on June 21, 1955, at 6:30 p. m. he fell into a ditch approximately five feet deep which had been dug across the sidewalk on Mitchell Street located about one-half a block from where he lived; that it scared him and caused him to suffer several fractured ribs; that he was familiar with said sidewalk and used it often, and that he was walking down the middle of the sidewalk. On cross-examination the plaintiff testified he had been blind 22 years and used a cane to tap and feel any obstructions before him; that he felt no dirt or wooden barricade; that when he passed that way earlier that day there was no ditch, and that he was “laid up” between two and three weeks with his injuries.
Several witnesses, including two city policemen, testified to the effect that the ditch was approximately five feet deep, extending across the sidewalk, and that there was a plank about 18 inches wide placed across the ditch lengthwise with the sidewalk, and that there was dirt piled up on both sides of the ditch except where the passageway was left open. None of the witnesses actually saw the plaintiff fall into the ditch and none could explain how he did fall.
Marvin R. Waits, employee of the defendant, testified that his crew was assigned to put in a sewer line for the building on Mitchell Street and while they were cutting the sidewalk concrete he noticed the plaintiff coming down the sidewalk and he asked one of his men to stop and help the plaintiff across the broken concrete which he did. He said to the plaintiff, “Be
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careful, we are doing some work here.” The witness then described the ditch as extending across the entire sidewalk except for about 18 inches next to the property line, and also described the manner in which he left it when his crew left work that night, testifying that they built a barricade of dirt, concrete blocks and boards and placed eleven lanterns at various points. The witness further testified that a ditch had been dug on the private property beyond the sidewalk before his crew arrived and that there were three six-inch boards laid across it. On cross-examination the witness testified that he did not have anything lying across the top of his ditch. The testimony of several other witnesses on behalf of the defendant was substantially the same as that of Mr. Waits.
J. C. Savage, J. M. B. Bloodworth, Henry L. Bowden, Newell Edenfield, Robert S. Wiggins, Ferrin Y. Matthews, Martin McFarland, for plaintiff in error.
Kyle Yancey, contra.
GARDNER, P. J.
1. As to the general grounds, the evidence, which we have set out in detail hereinabove, is sufficient to sustain the verdict of the jury.
2. The one special ground assigns error in that the court erred in failing to charge, after having been requested in writing to do so, upon the principle of law involving accident. It is contended that paragraph 11 of the defendant’s answer set out unavoidable accident as a material issue in the case and that evidence was adduced before the jury to substantiate such an issue; that the court failed to give any other charge on the subject of unavoidable accident; that such failure to give the requested charge was harmful and prejudicial to the defendant and is cause for a new trial.
The court charged fully the contentions of the plaintiff’s petition, as twice amended, as well as the answer of the defendant, and charged at length on the many principles of law involved in each instance. During the course of the charge the court said: “Ordinarily, it is incumbent, as a matter of law, for a person using the sidewalk to use their eyesight for the purpose of discovering any obstruction which might have been placed in the street; and while this rule would not apply to a blind person, I charge you that it would be incumbent upon a person using
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the street, even though blind, to take such precautions for his own protection as a reasonably prudent person would have taken under the same or similar circumstances, and if you should find that the plaintiff failed to take such precautions, and that this resulted in his injury, then I charge you that as a matter of law he would not be entitled to recover.” While the court did not charge specifically on the principle of law of accident, the court certainly did make a most thorough and comprehensive charge. The jury could not have been in doubt as to the issues involved, when the charge is considered as a whole. It will be noted that the evidence shows that the plaintiff knew of the excavation in the sidewalk, having been led through it early in the morning of the day the injuries occurred. However, changes had been made of which he could not have been cognizant, all of which facts were put before the jury by evidence, and the judge charged on each and every allegation of the petition as well as the answer of the defendant. The evidence was not so conclusive that neither the plaintiff nor the defendant was shown to be at fault, so as to make it mandatory that the court charge on the principle of law of accident. While it would not have been prejudicial error, perhaps, for the court to have so charged, to fail to so charge is not reversible error. Counsel for the defendant cites Holliday v. Mayor c. of Athens, 10 Ga. App. 709, 713 (74 S.E. 67), but even when we give that case a most liberal construction, it does not support the contentions of the defendant for a reversal. The facts involved in Southern Express Co. v. Hughes, 23 Ga. App. 224 (97 S.E. 860) are so different from the facts of the instant case that the holding there does not apply. The court did not err in failing to charge as contended in the special ground.
The court did not err in any of the rulings.
Judgment affirmed. Townsend and Carlisle, JJ., concur.