Town of Decatur v. Hinson

Stephens, J. 1. In this suit for damage to an automobile, caused by its colliding with an obstruction in a public street of a municipality from the alleged negligence of the municipality in maintaining the obstruction, the petition set out a cause of action and was not subject to general demurrer. 2. There was no error in admitting the bill for repairs to the automobile, in order to prove one of the elements of damage alleged to have been sustained by the plaintiff as a result of the alleged negligence of the defendant, since there was testimony to the effect that the items contained in the bill were correct and that the charges therefor were just and reasonable. 3. The charge of the court is subject to the exception that the jury was instructed that certain named acts of omission on the part of the defendant constituted negligence, since it does not appear that these acts ' were negligence per se, either by ordinance, statute, or otherwise, and since there were issues of fact made by the evidence as to whether the named acts referred to in the charge constituted negligence. An instruction elsewhere in the charge, that, if the jury found that the defendant was negligent, and that this negligence brought about the injury to the plaintiff, without expressly and unequivocally qualifying the instructions contained in the erroneous charge in reference to the specific acts characterized by the court as negligence, was not sufficient to counteract the effect of such erroneous charge, 4. The other exceptions to the charge of the court are without merit. Judgment reversed. Jenkins, P. J., and Bell, J., concur. Harwell, Fairman & Barrett, for plaintiff in error. Westmoreland & Smith, Augustine Sams, contra.