Bowen v. Smith-Hall Grocery Co. , 22 Ga. App. 54 ( 1918 )

Luke, J.

This case has been to the Supreme Court twice. 141 Ga. 721 (82 S. E. 23, L. R. A. 1915D, 617); 146 Ga. 157 (91 S. E. 32). Bowen brought suit for damages against Smith-Hall Grocery Company, a'• partnership doing business in the city of Dalton. The petition as amended contained, among other allegations, the -following; The defendants’ storehouse and place of ' business fronts on Hamilton street, the principal business street of the city,'upon which at all times' of the day there is a large amount of'travel by pedestrians and vehicles. At the time of the injury complained of there was in force in the city the following ordinance; “The proprietor of each business house must keep a covered garbage-can outside of his place of business, in which must be placed all refuse, garbage, and trasb from said place of business, to be called for by the proper city officers.” On the day of the injury the defendants, through their employes, placed upon and near the street and sidewalk in front of their place of business a large amount of trash and loose sheets of paper, without putting it in a receptacle or confining it in any way. The sheets of paper were light and were naturally liable to be blown about the street by even a slight breeze, and'naturally tended to excite and frighten even quiet and steady horses. The plaintiff, who was a capable driver, was driving two reasonably well broken, steady, and roadworthy horses along the street. The wind blew some of the paper on the horses and against their legs, which frightened them and caused them to run away, overturning the vehicle, breaking the tongue out of itj and causing the plaintiff to be violently thrown to the ground, to his serious personal injury. It was also alleged that they were negligent in placing the trash and paper where it was deposited. The Supreme Court held that the ordinance was a sanitary ordinance, and that its violation would not be negligence per se. At the conclusion of the plaintiff’s evidence the court granted a nonsuit.

The evidence did not prove the plaintiff’s ease, as laid, there being no proof that Smith-Hall Grocery Company, by its partners, servants, or agents placed the paper in the street which frightened, the plaintiff’s horses. The court therefore did not err in. granting a nonsuit.

Judgment affirmed.

Wade, G. J., and Jenhins, J*, concur.