Massey v. Mayor of Columbus

Blandeord, Justice. The error complained of in this case is as to the charge of the court. The facts showed that the plaintiff lived near the cily of Oolumbus; that he knew that in the streets of this city, ruuing north and south, there was an open sewer in the middle of the street, which street was one hundred and thirty-two feet wide; that there was more than fifty feet on each side of the sewer, which was safe for traveling. The streets running north and south intersected with streets running east and west. The latter streets had no sewers open in them; all were safe for traveling. The plaintiff left the track which was safe, and drove into the sewer,'which was five or six feet wide and eight or ten inches deep, whereby, as he alleges, his buggy was broken, his horse inj ured, and he himself damaged; whereas, if he had continued on the street, which was in good order and safe for traveling, to the intersection of the street running east and west, no damage or accident would have occurred; but he sought to cross the street he was on and the sewer, which had been recently cleaned out, and his horse became frightened when he got into the sewer, ran away, and the damage ensued. The court, in substance, charged the jury that the city was bound to keep its streets in a reasonably safe condition for persons to pass thereon in safety by night as well as in the day; but if the plaintiff could have avoided the injury by the use of ordinary diligence on his part, the city would not be liable. In our opinion, the charge of the court was right; it was in accord with several decisions of this court. 63 Ga., 295; 55 Id., [662] 17; 66 Id., 195. Plaintiff’s own testimony shows that he must have known that there was an open sewer in the middle of the street. His common sense would have taught him that the city would have to clear out the same at some time; and if he voluntarily departed from a track which was safe and drove into the sewer, he ought not to recover. Judgment affirmed.