City of Atlanta v. Bellamy , 72 Ga. 420 ( 1884 )

Hall, Justice.

This is the first grant of a new trial in this case, which we think Avas hardly Avarranted by what is disclosed in the record. There was some evidence,, however, upon which the jury might have found differently, though its decided weight, as it appears to us, is in favor of the verdict. It is impossible to place ourselves in the position of the able and experienced judge who presided at the trial,’ and to have communicated tons Avhat occurrences, during its progress, may have influenced Ms action; doubtless he had what he deemed sufficient and satisfactory reasons for Ms course. He alone can exercise a sound discretion in. granting or refusing a new trial, whether the verdict, is sustained by the decided and strong weight of the evidence or by slight evidence only. It would require an extreme case to justify our interference with the exercise of this discretion—one in which an abuse of the power was palpable. This is the invariable rule of our action. We think it conservative, prudent and wise, and although in some instances it may work hardship, yet in the vast majority'it tends to the maintenance of right and justice.

We hesitate not to say, from what we can gather from the proceedings before us, that we would not have disturbed this verdict, but, as before remarked, wc had none of the advantages of observation possessed by the judge who conducted the trial and saw and heard all that transpired in its progress. We think that no encouragement should be given to actions brought against towns and cities for the recovery of damages resulting from slight depressions or elevations made by displacing paving or flag stones, or bricks used in the construction of sidewalks and streets. As was remarked by Mr. Justice Crawford, in Rivers vs. The City Council of Augusta, 63 Ga., 378, “ Calamities and casualties are common to all, but because they occur, it by no means follows that such as may be so unfortunate are entitled to recover compensation in damages out' of some person, either natural or artificial, who may be able to respond, notwithstanding it appears that such impressions are beginning largely to prevail.” We cannot entertain the idea that “ municipal corporations are insurers against accidents upon streets and sidewalks, or that every defect therein, though it may cause the injury sued for, is actionable. It is sufficient if the streets (which include sidewalks and bridges thereon) are in a reasonably safe condition for travel in the ordinary mode, by night as well as by day.” To require higher care and diligence, at the hands of the public authorities, would exceed the resources at their command, and would entail upon the community an unsupportable burden. It is impossible to ascertain speedily when the bricks, paving and flag stones on the streets are- out of place, and to keep promptly in repair at all times trifling defects resulting from such causes. In all suits for damages resulting from such causes, these considerations should have weight with juries, whose peculiar province it is to pass upon questions of negligence, under directions from the court.'

Judgment affirmed.