Anglin v. City of Columbus

Atkinson, J. While, as a general rule, the question of damages is one for the jury, it does not follow that the court may not interfere where the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias. Civil Code, §3803. By the verdict the jury has found that the plaintiff is entitled to recover on account of the defendant’s negligence. There was no evidence upon which the jury could have found that [471] the plaintiff was guilty of contributory negligence. The evidence disclosed that the plaintiff’s husband had lived in the house to which the shed was attached, 8 or 9 years prior to the injury. The plaintiff testified: “So far as I could see, the shed was perfectly sound. I never examined the shed, but the shed seemed to be all right. I did not anticipate any danger at all from it. I have seen water back up along that street. I have seen the sidewalk covered with water two or three times. I lived there in that house with'my husband all the time. . . I was living in that house at the time the sidewalk caved in. I saw how the sidewalk was fixed at the time it was repaired by the city, 18 months or 2 years before the accident. . . I could not say whether the hole in the sidewalk went to the cellar door or not. I never noticed it particularly. . . That is the only hole I remember being washed out before the accident.” There was no other evidence tending to show knowledge upon the part of the plaintiff of the dangerous condition of the shed. In order for her to have assumed the risk of any danger incident to going under the shed, there must either be knowledge of the danger upon the part of the plaintiff, or the danger must be so obvious as that she would be charged with notice thereof. If she knew of the danger, or- if the danger was so obvious as that she would be charged with notice thereof, it might be said, under authority of Samples v. Atlanta, 95 Ga. 110, that she voluntarily assumed the risk, and would be chargeable with negligence of some degree, merely by going into a dangerous place. But the facts are not such as to show that she knew of the danger, or that the danger was so apparent as to charge her with notice, and consequently it could not be said that she. voluntarily assumed any risk. It is said that if the facts show negligence upon the part of the city, they of necessity show negligence upon the part of the plaintiff, because she had equal opportunities of knowing of the defects. This contention is not well founded, first, because it was not the plaintiff who repaired the hole, but the employees of the city, and it was the city’s duty to know that they exercised all ordinary and reasonable care and diligence in making it safe; secondly, because, as ruled in Idlett v. Atlanta, 123 Ga. 821, “ordinary diligence on the part of a person passing along a sidewalk of a public street of a municipal corporation, and ordinary'diligence on the part of the corporation in constructing and repairing the [472] sidewalk, do not imply a like degree of vigilance in foreseeing danger and guarding against it.” If there was no evidence authorizing the jury to find the plaintiff guilty of contributory negligence, there was nothing that would authorize the jury to reduce the amount of damages • naturally" flowing from, the injuries sustained. The only other question, therefore, with which we are to deal is as to whether the amount fixed by the jury was so small and disproportionate to the pain and suffering endured from the injury as to justify.the inference of gross mistake or undue bias. Under the evidence disclosed by-the record, if the plaintiff was entitled to recover anything, she was entitled to recover damages commensurate with the injury sustained. One hundred dollars was the amount fixed by-the jury, which we think is no compensation whatever for the pain and suffering already endured, to say nothing of the pain and suffering which will probably attend the plaintiff for the remainder of her life. It was insisted by counsel for the defendant in error that the verdict for this insignificant sum should be interpreted as a finding in favor of the city upon its contention that the city was not negligent, and that the pittance allowed by the jflry was a matter of mere gratuity. We can not construe the verdict in that way. A verdict for the plaintiff could not have been lawfully had against the defendant upon any theory except that of the negligence of the defendant, described in the pleadings; and when the jury expressly found against the defendant, the verdict must be 'construed according to its recitals. The jury must be taken at its wordy when by the effect of its verdict it finds that the city was negligent. In Flanders v. Mealh, 27 Ga. 358, an insignificant verdict -against a defendant, unexcepted to by the defendant, but sought to be set aside by the plaintiff upon the ground of inadequac)», was allowed to stand, but the record in that case disclosed facts going to show that the conduct of the plaintiff was such as to havé been the proximate cause of the injury, and for that reason the plaintiff was not entitled to recover anything whatever. Under those conditions, the court held that the plaintiff was not in a position to complain “for getting more than . . entitled to.” The distinction will readily be observed between that and the present case, where the injury, instead of being due to the negligence of the plaintiff, was due to the negli [473] genee of -the city. The case now before us falls more within the ruling of Potter v. Swindle, 77 Ga. 419, wherein it was held that a verdict for $25 was no compensation whatever for injuries sustained by reason of an unlawful arrest and detention. We are constrained, therefore, to hold that in view of the evidence and the nature of the injury complained of and the small amount of the verdict, there was an abuse of discretion in not granting the plaintiff’s motion for new trial. The evidence as to the defendant’s negligence was of such character as to have authorized a finding in favor of either party. If the jury did not believe that the city was negligent, they should have returned a verdict in favor of the defendant; but if, on the other hand, they believed from the evidence that the city was negligent, and that its negligence resulted in the injury as set forth in the plaintiff’s declaration, they should have found a verdict for the plaintiff for such an amount as would be fairly compensatory for the injury sustained. Judgment reversed. All the Justices concur.