Folsom v. Lewis

Blandford, Justice. This was an action to recover damages for injuries received by reason of the defendant in error having fallen into a hole, or cellar, on the premises occupied by the plaintiff in error. The declaration alleges that this cellar was near the sidewalk, in the city of Atlanta, and over it was a show-window in which were displayed certain viands and other things, put there for the purpose of inducing people to go into the restaurant of the plaintiff in error; that Lewis, passing along the street, stepped upon certain planks laid across this cellar opening, walked along the same four or five feet from the sidewalk, and fell into a hole, whereby he was injured. A verdict was had for Lewis, and Folsom moved for a new trial, alleging that the verdict was contrary to law and the evidence, and also that there was a variance between the proof offered to sustain the case of the plaintiff below and the allegations' in the plaintiff’s declaration. He also excepted to certain charges of the court, and the refusal of the court to charge as requested. This motion for a new trial was overruled, and Folsom, excepted, and says the court erred in refusing to grant the same. 1. One of the grounds contended for by counsel for the plaintiff in error before us is, that Folsom was not liable because he let the opening above the cellar to another person for the purpose of establishing a certain stand to sell various things, and that the negligence in allowing a certain portion of the cellar to be open was not his, but was the negligence of the person to whom he let it. We think, under the circumstances of this case, that such negligence on the part of the person to whom the opening above- the cellar was let, was charge [157] able to Folsom, and that he was liable for any negligence on the part of the person to whom he thus temporarily let such opening, although such person himself might also have been liable. 2. It is insisted on the part of the plaintiff’ in error that there was a variance between the proof submitted by Lewis and the allegations in his delaration, in this: that the allegation was that there were certain viands and other things in this show-window above the opening, placed there by Folsom, which were calculated to tempt one passing along the street to look into the window, in which there was a gas-light; whereas the proof showed that there were certain boxes of oysters, and other things,,in the show-window at the time, and that no such things were in the show-window-as were alleged in the declaration. This alleged variance was not material to the merits of the case. It is enough if there was something in the window to attract attention. 3. We have looked into the charge of the court. We think the law, as applicable to the facts of the ease, was correctly given by the court to the jury; and we do not think the requests made, on account of their general character and for the errors appearing therein, should have been given by the court to the jury; and therefore there was no error in charging the jury as the court did, or in refusing to charge as requested by the plaintiff' in error; and the judgment of the court below is Affirmed.