Opinion
38388.
DECIDED JUNE 29, 1960. REHEARING DENIED JULY 14, 1960.
Action for damages. Decatur Superior Court. Before Judge Crow. March 26, 1960.
Conger Conger, for plaintiff in error.
Vance Custer, Charles A. Kirbo, Harold Lambert, contra.
The evidence is amply sufficient to support the verdict of the jury. The trial court did not err in denying the motion for a directed verdict, the motion for a judgment notwithstanding the verdict, and the motion for a new trial.
DECIDED JUNE 29, 1960 — REHEARING DENIED JULY 14, 1960.
This is a damage suit brought by Mrs. Gladys L. Youngblood (hereinafter called the plaintiff) wherein she alleges that the City of Bainbridge (hereinafter called the defendant) was negligent in the maintenance of the sidewalk. The case proceeded to trial before a jury, which resulted in a verdict in favor of the plaintiff for $800. The defendant filed a motion for a new trial on the general grounds. The motion for a new trial was overruled and it is to this judgment that the case is here for review, as well as the overruling of a motion for a judgment notwithstanding the verdict, which included the motion for a directed verdict.
The petition shows substantially (1) that the City of Bainbridge is a municipal corporation; (2) that the defendant injured and damaged the plaintiff in the sum of $5,000; (3) that on January 17, 1958, about 3:30 p. m. the plaintiff was walking on a street in Bainbridge and had reached a point "approximately eighty feet north of the intersection of Broad and Water Streets, when she was injured and damaged" because of negligence of the defendant; (4) that at the point in the sidewalk where the plaintiff was walking there was a drain from buildings which discharged rain water on the sidewalk to the gutter and that seepage from such water collected, and flowing across the sidewalk has, over a period of time, caused holes and cracks in the sidewalk which have been patched by the defendant; that the repair work done by the defendant created a depression in the sidewalk "some 1 1/2 to 2 inches lower than the balance of such paved sidewalk. Protruding above the surface of such depression for one and one-half inches is a metal water meter casing"; (5) that the condition of the sidewalk created hazards to persons using the sidewalk and that such sidewalk at that point is one of the main thoroughfares of the defendant, being heavily traveled by the public; that a pedestrian, even when looking, would not have full appreciation of the danger involved, and that when the plaintiff was walking on the sidewalk at the time and place, the condition of the sidewalk was obscured from her view by a number of people walking on the sidewalk and that she did not become aware of the defective condition until she began to fall; (6) that the condition had existed for such a length of time that the defendant and its employees knew or should have known of the defective condition; (7) that the plaintiff was not familiar with the depression in the sidewalk and that as she reached the defective point in the sidewalk, her left heel caught in the break in the pavement; that she was in the exercise of ordinary care for her own safety and did not know of the existence of the defect on the public, much used street, and the defect was obscured from her view; (8) that as a result of the fall the plaintiff suffered the described injuries; (9) that while the plaintiff was in bed and confined to her home she suffered excruciating pain as a result of the fall; (10) that she continues to suffer pain and will suffer so long as she lives as a result of the fall caused by the negligence of the defendant; (11) that the defendant was negligent in failing to maintain the sidewalk in safe condition for use of the public; (12) that the plaintiff was free from fault; (13) that the plaintiff filed, within the legal time, a claim with the authorities of the City of Bainbridge and that they failed to act upon the claim within thirty days.
The evidence shows that a photographer took pictures of the point where the plaintiff was injured and the photographs are properly exhibited in the record. The photographer testified: "These pictures . . . are correct and undistorted reproductions of the scene . . . and show the condition of the sidewalk and street at that place . . . a detailed view of the water meter and rough sidewalks around it. . ."
W. W. Merchant testified that the pictures showed substantially the condition of the sidewalk at the time of the accident and that he thought that that condition had existed two or three years.
Hattie Harris testified that she saw the plaintiff after she started stumbling and that she thought it was rough pavement which caused the plaintiff to stumble. She testified: "That is a bad place in the sidewalk. A person could fall by getting tangled up in that pavement . . . and then there's the water meter that's sitting above that roughness . . . I think that water meter above caused her to trip."
The plaintiff testified that she had lived in Bainbridge for many years; that the pictures reflected the true condition of the sidewalk at the time she fell; that she was not aware that the situation at the point where she fell was as dangerous as it proved to be; that there were other people passing up and down the street at the time of the accident and that necessarily her attention was attracted to these other people in order to avoid walking into them. She described her injuries. She testified that after her injuries it was necessary for her to hire a maid at $20 per week to assist her with the housework and she described other expenses incurred as a result of the injuries.
Dr. E. M. Griffin, a practicing physician in Bainbridge, testified that he treated the plaintiff on the date of the injury at the hospital; that he sewed up the lacerations and gave her a tetanus vaccine shot; that she came in from time to time and that some several months elapsed and she began to complain of subsequent pain.
Mrs. Audrey Ross, Dr. Griffin's nurse, testified as to bruises and bleeding of the plaintiff and discoloration of her face which resulted from the injury.
1. It is conceded that under Code § 105-603 the plaintiff would not be entitled to recover if she could have avoid the injury by the use of ordinary care. See White v. City of Manchester, 92 Ga. App. 642 ( 89 S.E.2d 581); and Lane Drug Stores v. Story, 72 Ga. App. 886 ( 35 S.E.2d 472). The street where this accident occurred was in a very dilapidated condition as shown by pictures referred to hereinabove. Even if the plaintiff could possibly have known that the street was in a bad state of repair, when we look at the pictures shown in the record, it is comprehensible to us that she could not very well have walked across this expanse of defective sidewalk without being injured, even though she might have thought she could have. It is the duty of a municipality to keep streets and sidewalks in a reasonably safe condition for travel in the ordinary mode.
The jury in the instant case determined that the defendant was negligent in failing to maintain the sidewalks in a reasonably safe condition. There are many, many cases holding that, when a municipality fails in this respect, it is liable for injuries sustained by a person who is using reasonable care for his or her own safety.
When a jury has passed on the facts in a case the appellate courts are constrained not to reverse the verdict of the jury. In this respect the Supreme Court said in Ingram v. State, 204 Ga. 164, 184 ( 48 S.E.2d 891): "In passing on the general grounds of a motion for new trial, this court passes not on the weight but on the sufficiency of the evidence. It is our duty to determine whether the verdict as rendered can be sustained under any reasonable view taken of the proof submitted to the jury. We are not called upon to say whether, had we been in the place of the jury, we might have found the accused guilty of a lesser offense. It was the province of the jury, and theirs alone, to put their appraisal upon the proofs submitted to them."
It is never error for a trial court to refuse to direct a verdict. It is clear to us that no error was committed in this respect in the case at bar. The evidence is clear and conclusive that the defendant was negligent in maintaining the sidewalks. There is no evidence to show that the plaintiff did not exercise ordinary care for her own safety. There is no merit to the contention that the trial court erred in overruling the motion for a judgment notwithstanding the verdict. Failure to grant a motion for a judgment notwithstanding the verdict is reversible error only where the evidence shows conclusively that the jury arrived at an obviously incorrect verdict.
The overruling of the motion for new trial shows no cause for reversal.
Judgment affirmed. Townsend, Carlisle and Frankum, JJ., concur.