Pate v. City of Atlanta

Supreme Court of Georgia

Pate v. City of Atlanta

46 S.E. 827, 119 Ga. 671, 1904 Ga. LEXIS 327

CourtSupreme Court of Georgia

DecidedMarch 4, 1904

StatusPublished

Cited by4 cases

This text of 46 S.E. 827 (Pate v. City of Atlanta) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pate v. City of Atlanta, 46 S.E. 827, 119 Ga. 671, 1904 Ga. LEXIS 327 (Ga. 1904).

Pincite

Opinion

Candler, J.

A careful reading of the evidence for the plaintiff, in connection with his petition, convinces us that the grant of a nonsuit was error. The suit was based on the alleged negligence of the defendant in leaving open a ditch across one of its streets at night without placing near it lights or other warning to prevent passers-by from falling into the excavation. The ditch had been dug for the purpose of laying a sewer-pipe, and extended under and on both sides of a street-car track in the middle of the street. According to the plaintiffs evidence, he was walking along the sidewalk in th,e vicinity, and before reaching the ditch, and without reference to it, he started to, cross the street, when he was attracted by a crowd gathered around a horse which had fallen into the ditch. He stopped and went in among the crowd to see what was the matter. After gratifying his curiosity he backed out of the crowd and crossed the street-car track, where he himself fell into the ditch and was injured.. He swore that the night was dark; that there were no lights to warn him of his danger; that he could not see that the ditch into which the horse had fallen extended under and across the street-car track; and that there was nothing to put him on notice of that fact.

It will hardly be contended that it is negligent for a pedestrian, even on a dark night, to leave the sidewalk on which he is walking, for the purpose of crossing the street. Nor do we think it can be said as a matter of law'that it is negligent, under such circumstances, for one to stop in the middle of the street and ascertain the cause for the gathering of a crowd, or that one who [672]*672sees a ditch on one.side of a street-in a crowded city at night is thereby put on notice that the ditch runs under and across a street-car track to the other side of the track. Under the plaintiff’s evidence, he was in the exercise of due care and prudence; and whether or not his conduct under the circumstances- really amounted to negligence should have been left to the jury.

■Judgment ^reversed.

All the Justices concur, except Simmons, G. J., absent.

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Candler, J.

A careful reading of the evidence for the plaintiff, in connection with his petition, convinces us that the grant of a nonsuit was error. The suit was based on the alleged negligence of the defendant in leaving open a ditch across one of its streets at night without placing near it lights or other warning to prevent passers-by from falling into the excavation. The ditch had been dug for the purpose of laying a sewer-pipe, and extended under and on both sides of a street-car track in the middle of the street. According to the plaintiffs evidence, he was walking along the sidewalk in th,e vicinity, and before reaching the ditch, and without reference to it, he started to, cross the street, when he was attracted by a crowd gathered around a horse which had fallen into the ditch. He stopped and went in among the crowd to see what was the matter. After gratifying his curiosity he backed out of the crowd and crossed the street-car track, where he himself fell into the ditch and was injured.. He swore that the night was dark; that there were no lights to warn him of his danger; that he could not see that the ditch into which the horse had fallen extended under and across the street-car track; and that there was nothing to put him on notice of that fact.

It will hardly be contended that it is negligent for a pedestrian, even on a dark night, to leave the sidewalk on which he is walking, for the purpose of crossing the street. Nor do we think it can be said as a matter of law'that it is negligent, under such circumstances, for one to stop in the middle of the street and ascertain the cause for the gathering of a crowd, or that one who [672]*672sees a ditch on one.side of a street-in a crowded city at night is thereby put on notice that the ditch runs under and across a street-car track to the other side of the track. Under the plaintiff’s evidence, he was in the exercise of due care and prudence; and whether or not his conduct under the circumstances- really amounted to negligence should have been left to the jury.

■Judgment ^reversed.

All the Justices concur, except Simmons, G. J., absent.

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46 S.E. 827, 119 Ga. 671, 1904 Ga. LEXIS 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pate-v-city-of-atlanta-ga-1904.

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