McAfee v. Atlantic Ice & Coal Corp.

105 S.E. 631, 26 Ga. App. 25, 1920 Ga. App. LEXIS 246

• Court: Court of Appeals of Georgia
• Decided: December 15, 1920
• Docket: 11699
• Status: Published

Opinion

Broyles, O. J.

Under all the particular facts of the case as disclosed by the record, the court did not err in awarding a nonsuit.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.

From the evidence it appeared that in January, 1918, the defendant purchased the wagons, trucks,' and other property of the Southern Ice Company, which for some years and until the sale of its property had been regularly using these vehicles in crossing the sidewalk at the place mentioned, to go to and from its stable in Duvall’s alley, and that this use was continued by the defendant. Duvall’s alley was a public alley, with houses in it in which people resided, and was used by other vehicles than those mentioned above, but not, so far as the witnesses knew, by vehicles so large or so heavily loaded as the defendant’s ice-wagons or trucks. It was testified that the cement of the sidewalk had begun wearing and breaking pripr to 1918, and that a few days before the plaintiff fell a place broke “clear across the pavement into the alley;” that the wheels of the ice-wagons would strike the concrete and break it when turning into the alley; that they were driven recklessly and had worn a place several inches deep where they went in and out, and had almost knocked over a stone post. The plaintiff resided near the alley; there was one lot between it and her home, and she “ had been going by there for a year.” She testified: “ I noticed this Duvall’s alley there from time to time; it was broken part of the way and there was a stone that was knocked over partly; . . but there was a place, when I would go down the sidewalk, that I would walk, next to the residence section, that had not been crushed, and I tried to pick my way. On this occasion, the 19th of February, the sidewalk had been broken across; it had been crushed; and as I stepped to walk across the cement it threw me from my feet; I had no balance; the cement had been broken entirely across the sidewalk; that had been done just a few days before that.” “ As I put my foot on the cement it gave way, and I fell into the fragments of that place. . . The sidewalk showed a crushed condition, seemed to be heavy rains, something had softened the dirt under the base of the cement. . . When I fell it did not show there were ruts or crushed cement; it just looked like the alley was a rough, broken alley, like I hit it with a sledgehammer, and when I put my foot on that cement it tilted me on my face. . . When I went across the sidewalk I did not investigate the place, for I never dreamed of falling. I picked the best places to walk across until I fell. . . When I went across here for several months I. didn’t stop to see it was not in good condition; I just walked carefully across on the best side of the sidewalk. . . I only saw it was tolerably good to walk on and walk across.”

Edgar Lalham, for plaintiff,

cited: Civil Code (1910), §§ 4456-7; 74 Ga. 774(3); 140 Ga. 314-6; 37 Cyc. Law & Prac. 247, 268; 68 Ga. 431(3-5); 112 Ga. 607(2); 143 Ga. 436; 141 Ga. 721; 85 Ga. 146(1), 156; 138 Ga. 600(5); 2 Dill. Mun. Corp. (5th ed.), sec. 1727; 93 Ga. 462(3); 96 Ga. 450(2), 452; 140 Ga. 713(2), 716; 145 Ga. 133(1); 144 Ga. 403; 113 Ga. 575.

McDaniel & Blade, for defendant,

cited: 120 Ga. 785(2); 92 Ga. 628; 113 Ga. 152; 95 Ga. 135; 53 Ga. 607; 55 Ga. 17; 74 Ga. 774.