County of Macon v. Chapman

Hall, Justice. This was a suit against the county of Macon to recover damages for killing plaintiff’s mule by reason of defects in a public bridge which the county should have kept in repair and in a safe condition to be traveled over. On the trial, and, as we infer from the record, at the proper stage, of the trial, defendant’s counsel requested the court orally to charge the jury, “ If the plaintiff, by the exercise of or dinary care and diligence, could have avoided the injury to the mule, then he could not recover.” This charge was declined, because the request to make it was not in writing, as the judge states in certifying the grounds of the motion for a new trial. It appears from the entire charge, which is sent up, that the jury were instructed that if they should find that the county failed to take from the contractor to «build the bridge a bond to keep it in repáir, as required by the statute, then the plaintiff, without more, was entitled to recover. [109] 1. There is not, throughout the entire charge, any instruction or any allusion to the principle embraced in the request. That it is good law we have no doubt. Code, §2972 and citations; 17 Ga., 136, 137; 58 Id., 238. 2. We are equally cl'ear that, when the court’s attention was called to the principle, it should have been given in charge, whether the request was made orally or in writing. Richardson vs. The State, 70 Ga., 825; 69 Id., 246; 20 Id., 523. The exception here is not alone to the refusal to charge as requested ; it is also to the charge as given. The complaint is that it is not sufficiently full; that it does not cover the various phases of the case as made by the proof, and we think the complaint in that particular well founded. 3. This will necessitate a new trial, and upon another hearing, the newly discovered evidence, in relation to the demand made on the county commissioners for payment for the injury, can be fully investigated. We think the testimony alleged to be newly discovered is merely cumulative, and that the court did not err in refusing the new trial on that ground. Judgment reversed.