
    The City of Atlanta, plaintiff in error, vs. Henry L. Wilson, defendant in error.
    Though the plaintiff's horses took fright, turned over his huggy, and threw it down the embankment of the street upon which he was driving, and thus he was injured, yet, if the city was negligent in constructing the embankment, in not providing it with necessary railing or other means of protection, and in not keeping the street in safe condition, and such negligence was the real cause of the injury, (the jury being the judge of these matters as questions of fact,) the plaintiff has a cause of action.
    Municipal corporations. Actions. Negligence. Before Judge Hilly'er. Fulton Superior Court. April Term, 1877.
    Reported in the opinion.
    W. T. IN ewman, for plaintiff in error.
    L. J. Glenn & Son ; Jno. T. Glenn ; McOay & Trippe, for defendant.
   Bleckley, Judge.

The declaration was demurred to generally, and the demurrer was overruled. The question is, whether any cause of action is set forth. The case made is this: Harris street, one of the public streets of the city, is fifty feet wide. Near where it crosses a branch, the city has thrown up an embankment in the street, ten feet high and two hundred yards long. This embankment is only thirty-five feet wide, fifteen feet of the street being below the embankment. The city has neglected to erect any railing or other means of protection along the embankment, for the safety of vehicles. To do this was its duty; the failure was negligence, and such negligence caused the injury now complained of. It was the duty of the city to keep the street in safe condition. By reason of the city’s negligence and carelessness in erecting the embankment and leaving it in the unprotected condition described, the plaintiff has been damaged the sum of ten thousand dollars, in this: on the 30th of June, 1875, he was driving his buggy, with himself and three small children in the sanie, along said street, upon the embankment, when, without fault or negligence on his part, the horses attached to the buggy became frightened at the blowing of a steam whistle in a manufacturing establishment, and made a sudden and unexpected jerk, detaching a single-tree, (the same being in good order,) which struck against the legs of one of the horses, causing him to turn suddenly and upset the huggy, throwing it down the embankment, and thereby dislocating the right knee of the plaintiff, and causing other injuries to himself and his children. The injury to the knee is permanent, has 'made his leg crooked, and will cause him pain and suffering as long as he lives. He has been subjected to great expense and loss of time; has been compelled to pay physician’s bills to the amount of five hundred dollars; has been confined to his bed for two months, and is still unable to walk about and attend to business, and is suffering great bodily pain. He could not prevent the fright of the horses, nor the detaching of the single-tree.

It will be observed that the declaration alleges negligence on the part of the defendant, specifies in what it consisted, and avers that it caused the injury. The demurrer admits all this to be true, as well as the nature of the injury, the plaintiff’s freedom from fault, and the fact and extent of his damage. In Georgia, negligence is held to be a question of fact for the jury. We have no doubt that the' declaration is sufficient in law, if the jury shall believe it fully proved. It will be for them to decide whether*(¿¡re*^ street, under all the circumstances, was less 'Safe tlian’ it should have been, and whether its unsafe condition was the real cause of the injury. The city was bound to ordinary and reasonable diligence, and the plaintiff was entitled to such protection as that diligence would afford — nothing more and nothing less. Negligence contributing to the injury, would render the defendant liable, but any negligence which did not harm the plaintiff, would be, as to him, as if it were not. The whole matter is for the jury, under proper instructions from the bench.

Cited for plaintiff in error: "What demurrer admits, 4 Ga., 520; 49 Ib., 419; Code, §3332; Stephens Pl., 143; Negligence as cause of injury, Dillon on Mun. Cor., §788; 7 Gray, 100, 104; 16 Pick., 189; 4 Allen, 113; 97 Mass., 258, 266; 98 Ib., 578; 106 Ib., 298; 32 Maine, 46, 574; 51 Ib., 127; 30 Wis., 250; 23 Barb., 643; 55 Ga., 609; Whar. on Neg., §103, et seq.

For defendant: 2 Cush., 600; 42 N. H., 197; 25 Iowa, 108; 48 Ill., 499; 35 Ib., 63 ; Am. Law Times, June, 1876, p. 92; Code, §§2972, 3072; 27 Ga., 358.

Judgment affirmed.  