Opinion
36682.
DECIDED MAY 21, 1957.
Tort; pedestrian injured by sidewalk defect. Before Judge Paschall, Emeritus. Whitfield Superior Court. January 24, 1957.
Carlton McCamy, for plaintiff in error.
D. W. Mitchell, Jr., Malcolm C. Tarver, contra.
It was not error to deny the motion for new trial.
DECIDED MAY 21, 1957.
Mrs. Flonnie Hill brought an action in the Superior Court of Whitfield County, Georgia, against the City of Dalton, alleging in substance: that on April 27, 1956, at about 7 p. m., she crossed Hamilton Street, in the City of Dalton, at its intersection with East Morris Street; that as she crossed over to the east side of Hamilton Street and entered the sidewalk of East Morris Street, at a place where there was a filling station, it was necessary for her to look and give attention as to whether or not there were vehicles entering the filling station premises, so as to avoid a collision with any such vehicle; that as she proceeded along the sidewalk, and at a time when she had reached a point approximately 40 inches from the curbing on the street, there was a hole in the sidewalk, approximately two feet in length, 18 inches in width, from 2 to 3 inches in depth; that the plaintiff stepped into the hole, and as a result of so stepping in the same lost her balance and fell; that she sustained a broken left arm as a result of the fall. She further alleged that she was free from any fault, and that her injuries were occasioned by the negligence of the City of Dalton in not keeping its sidewalks in a reasonably safe condition for travel. She further alleged that the defect in the sidewalk had existed for a period of approximately eleven years. The petition was in two counts, the first alleging actual notice to the city of the existence of the defect, and the second alleging actual and constructive notice to the city of the alleged defect. She further alleged that, by reason of the presence of the defect for the period of time of eleven years, the defendant knew, or in the exercise of ordinary care should have known that the defect existed, and was under the duty to have repaired it. The defendant, by its answer admitted its existence as a municipal corporation, but denied any and all acts of negligence alleged in the petition, and, by further answer, alleged that if the plaintiff were injured, as alleged, it was as the result of her failure to exercise care for her own safety in not watching where she was going, and that the city was free from fault; that the city street and sidewalk at the place alleged had been used by many people, was in reasonably safe condition, and that the city was entirely free from negligence.
On the trial the plaintiff testified in part: that she crossed the street and after reaching the sidewalk she stepped into a hole approximately three inches deep, and about forty inches from the curb; she fell and broke her arm; the traffic was heavy on that date; there was an automobile coming into the station at the time she was walking on the driveway (which was also the sidewalk); she knew of the bad condition of the street for approximately sixteen years; the reason she did not see the hole was because there was an automobile entering the filling station and she looked up to see whether it was going to stop or not; she looked up to keep from walking out in front of the automobile which was entering the station.
There were other witnesses who testified as to the length of time the sidewalk had been in poor condition, and photographs of the hole were introduced in evidence.
The jury returned a verdict for the plaintiff. The defendant's motion for new trial was denied, and it excepts.
1. The defendant insists that the trial judge erred in failing, without request, to charge the following: "If you should find that both the plaintiff and the defendant were guilty of negligence, but that the negligence of the defendant was greater than the negligence of the plaintiff, the plaintiff would be nevertheless entitled to recover, but the amount of her recovery would be reduced in proportion to the amount of default attributable to law, provided, of course, that the negligence of the plaintiff did not amount to a failure to exercise ordinary care."
The defendant contends comparative negligence was an issue in the case and the trial judge should have given the above quoted charge. In the present case the defendant denied any negligence on its part and also denied that the plaintiff was exercising ordinary care at the time of her injury. There was no request to charge on the principle of comparative negligence and "no distinct plea was interposed by the defendant which set up any claim for a diminution of damages on account of negligence of the plaintiff, not sufficient to bar a recovery." Western A. R. Co. v. Jarrett, 22 Ga. App. 313, 321 ( 96 S.E. 17). Therefore this defense was not directly involved, and in the absence of timely request the trial judge did not err in failing to charge thereon. Savannah Electric Co. v. Crawford, 130 Ga. 421 ( 60 S.E. 1056); Ingram v. Hilton Dodge Lumber Co., 108 Ga. 194 ( 33 S.E. 961); Pierce v. Atlanta Cotton Mills, 79 Ga. 782 ( 4 S.E. 381); L. N. R. Co. v. Smith, 136 Ga. 455 ( 71 S.E. 774); Eidson v. Felder, 69 Ga. App. 225, 230 ( 25 S.E.2d 41); Callaway v. Fischer, 69 Ga. App. 251, 256 ( 25 S.E.2d 131). Special ground 1 is without merit.
2. Special ground 2 assigns error on the following charge: "If you find from the evidence that the alleged injury to the plaintiff was caused by the negligence of the city in not repairing the alleged defect in said sidewalk even though you find that someone other than the city made the alleged defect in the sidewalk, and you find that the city had actual knowledge of the alleged defect, or if you find that the city had constructive knowledge of the alleged defects, meaning that the city by the exercise of reasonable diligence could have discovered the defect, then you should return in favor of the plaintiff in the case." The defendant contends the charge was harmful because it instructed the jury to return a verdict for the plaintiff upon evidence of the defect, without regard to the diligence of the defendant in repairing the same after such knowledge. Just prior to the charge objected to the trial judge gave the following instructions: "A municipal corporation is liable for injuries caused by its neglect or omission to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes; and it is also liable for such injuries caused by its neglect or omission to remedy defects in its public streets or sidewalks, occasioned by the wrongful acts of others. In the latter class of cases the foundation of the action is negligence in failing to remedy the defects, and in the absence of actual knowledge the municipality is not liable unless the defect occasioned by the wrongful act of another has existed for such length of time as to charge the municipality with notice of its existence.
"If the municipality, in the exercise of reasonable diligence in the performance of its duties, has the means or knowledge of defects in its sidewalk, occasioned by others, and negligently remains ignorant thereof, the municipality is constructively charged with knowledge thereof, and cannot escape liability upon the ground that it did not have actual notice of such defect."
The charge taken as a whole fully covered the diligence required of the defendant in repairing the defective sidewalk. Griggs v. State, 59 Ga. 738; Brown v. State, 65 Ga. 332 (2); Brooks v. State, 19 Ga. App. 45 ( 90 S.E. 971). Special ground 2 shows no merit.
3. Special ground 3 complains that the trial judge erred in giving the following instructions: "If the city, by the exercise of ordinary care in the performance of its duties, has the means of knowing of the defect in the sidewalk, though caused by others, and the city negligently remains ignorant of the defect, it is equivalent to having actual knowledge of said defect." The defendant contends that the charge is not a correct abstract principle of law. Under the holding of Bellamy v. City of Atlanta, 75 Ga. 167 (2) this ground is without merit.
4. There was sufficient evidence to support the verdict and the general grounds are without merit. Coker v. City of Rome, 53 Ga. App. 533 ( 186 S.E. 585); City of Silvertown v. Harcourt, 51 Ga. App. 160 ( 179 S.E. 772); City of Rome v. Hanson, 57 Ga. App. 222, 224 (2) ( 194 S.E. 887).
Judgment affirmed. Felton, C. J., and Nichols, J., concur.