Opinion
36700.
DECIDED JUNE 13, 1957. REHEARING DENIED JUNE 21, 1957.
Tort; damage to residence. Before Judge Alexander. Savannah City Court. January 28, 1957.
Hitch, Miller Beckmann, Robert M. Hitch, John E. Simpson, Grady L. Dickey, for plaintiffs in error.
James B. Blackburn, contra.
1. An assignment of error on a judgment overruling general demurrers which is not argued orally or in the brief of counsel for the plaintiffs in error or generally insisted on will be treated as abandoned in the appellate court. Code § 6-1308; Johnson v. Howard, 92 Ga. App. 96 ( 88 S.E.2d 217).
2. An assignment of error on the refusal of the court to award a nonsuit will not be considered, where thereafter the case proceeds to a verdict in favor of the plaintiff and the defendant's motion for a new trial, to the denial of which exception is taken, includes the ground that the verdict is contrary to the evidence and without evidence to support it. Wakefield v. Lee, 18 Ga. App. 648 ( 90 S.E. 224).
3. The trial court did not err in denying the motion for new trial based solely on the general grounds.
DECIDED JUNE 13, 1957 — REHEARING DENIED JUNE 21, 1957.
Mrs. Agnes E. Blackburn brought an action for damages against the Mayor and Aldermen of the City of Savannah and the Savannah Asphalt Company. The material allegations of the petition as finally amended are substantially as follows: The Savannah Asphalt Company contracted with the City of Savannah to excavate, resurface and pave portions of 37th Street, a public thoroughfare in the City of Savannah. This work was to be done under methods approved by and under the supervision and inspection of the Engineering Department of the City of Savannah. The plaintiff is the owner of property on the north side of 37th Street, known as 726 East 37th Street, which is a lot, together with a 5-room concrete block bungalow thereon. On or about September 30, 1954, the Savannah Asphalt Company, in pursuance of its contract with the city, dropped from an extended boom of a crane a wrecking ball, weighing from one-half to one ton, for the purpose of breaking up and removing the existing pavement on 37th Street directly in front of the plaintiff's property. The vibration from the incessant pounding of the wrecking ball upset the plaintiff's home causing it to shake and crack both inside and out. The inside walls and ceiling parted in more than two dozen places creating cracks one-quarter of an inch wide. The outside walls of stucco which covered the concrete blocks cracked completely through. The doors and windows were sprung, leaving them completely out of line. The plaintiff immediately gave notice to the operator of the crane and to the manager of the Savannah Asphalt Company. As the result of the methods used and the pounding of the pavement with the heavy steel ball immediately in front of the plaintiff's home, her property was damaged in the amount of $3,500. Immediately before this damage was done, the plaintiff's property had a reasonable market value of $8,000, and thereafter had a market value of only $4,500. All of the damages sustained by the plaintiff were caused by the negligence of the Savannah Asphalt Company in the following particulars: (a) In using a method for breaking the existing pavement which would cause injury to the property of the adjoining owners; (b) in failing to use and take proper precautions to protect the property of the adjoining owners; (c) in using the wrecking ball in a reckless and careless manner without taking proper precautions; (d) in failing to change its methods or otherwise minimize the damage to the plaintiff after being notified by her of the damage being done. The Mayor and Aldermen of the City of Savannah, acting through its engineering department, were negligent: (a) In allowing the Savannah Asphalt Company to use methods in the performance of their contract which were not safe and which were likely to cause damage to the property of the adjoining owners; (b) in failing to keep and to make proper inspection to see that the work was performed in a satisfactory manner without unnecessary damage to others; (c) in allowing the use of a system of breaking the pavement which by its very nature would cause damage to the adjoining property owners. Notice and demand was made to the defendants for payment of the damages of which complaint is made and a petition was filed with the Mayor and Aldermen of the City of Savannah requesting payment for the damages. This petition was denied on the ground that if any liability existed, it was that of the contractor. The damaging of the plaintiff's property amounted to damaging and taking of private property without compensation first being paid, in violation of the Constitution of the State of Georgia.
The general demurrers of both defendants were overruled and error is assigned on those judgments. Both defendants answered denying the allegations of the petition.
At the close of the plaintiff's evidence, the defendants moved for a nonsuit which was denied and error is assigned on that judgment.
On the trial, the jury returned a verdict of $3,500 for the plaintiff.
The joint motion of the defendants for a new trial, based solely on the general grounds, was denied and error is assigned on that judgment.
1, 2. Headnotes 1 and 2 are self-explanatory and require no elaboration.
3. The trial court overruled the defendants' general demurrers and fixed it as the law of the case that the petition set out a cause of action for damages. The plaintiff proved her case substantially as laid, and the verdict being within the range of the evidence, the trial court did not err in denying the motion for new trial based solely on the general grounds.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.