1. The general grounds of the motion for new trial are without merit.
2. A charge upon an issue raised by the pleadings is not error though supported only by evidence elicited on cross-examination.
3. The charge of the court as to plaintiff's failure to exercise care for her own safety was not erroneous because of failure to go further and charge without request as to comparative negligence and diminution of damages. Kerns v. Crawford, 51 Ga. App. 158 (3) (179 SE 854).
4. It is not error to charge that if the jury should find against a material and essential issue made by the petition but denied in the defendant's answer they should go no further, though the evidence may have fully authorized a finding in support of the issue.
5. It is error to charge upon the responsibility of one not a party to the case in such a manner as to convey the impression that his responsibility superseded that of the defendant when both were under an equal responsibility.
6. Questions calling for a mere conclusion of the witness are improper.
Mrs. Paul Malone brought suit against the City of Rossville and the Central of Georgia Railway Company for injuries which she suffered from falling when stepping into a hole located between the rails of the railroad and within what is known as McFarland Avenue where the railroad crosses it in Rossville. Negligence was charged against the city in failing to maintain its street in a safe condition, and against the railroad in failing to maintain that portion of the street within its right of way at the intersection.
The railroad settled her claim against it, taking from her a covenant not to sue, and the suit was dismissed as to it. The city then amended its answer setting up the covenant and suggested that in the event a verdict should be rendered against it, a credit should be given the city up to the amount paid to Mrs. Malone by the railroad for the covenant in mitigation of her damages.
After a verdict for the defendant, plaintiff filed a motion for new trial which, after amendment, was overruled and to that judgment she here excepts.
1. While a verdict was not demanded for the defendant, we can not say that it was not authorized. It is settled that when one of two joint tortfeasors settles with a plaintiff and takes a covenant not to sue, the remaining tortfeasor, or defendant, is entitled to have credited against any damages that the jury might find against it the payment made by the other for the covenant not to sue, up to the full amount thereof. Atlantic U. L. R. Co. v. Ouzts, 82 Ga. App. 36 (2) (60 SE2d 770)
. The reason is, of course, that there can be only one recovery of damages for one wrong or injury. Here the railroad paid Mrs. Malone $4,500, and who can say that the jury did not conclude that even though both the railroad and the city were at fault, she had been fully compensated for her injury? There is no merit in the general grounds.
2. Whether plaintiff was in the exercise of ordinary care for her own safety when she was injured became an issue in the case when raised in the defendant's answer and by the evidence--though, as to evidence, as a result of cross-examination only. Thus the court committed no error when, after charging upon the duty of the city to maintain its streets in a safe condition and telling the jury that "if you find that they did not, and find that [its failure to do so] was the proximate or direct cause of her injuries; then, if you further find, in addition to all that, that by the exercise of ordinary care and diligence for her own safety Mrs. Malone could not have avoided that injury, then she would be entitled to recover." Ground 1 of the amended motion is without merit.
3. Headnote 3 needs no elaboration,
4. In its answer the city, while admitting that McFarland Avenue was a public street therein, denied that the street "exists where plaintiff alleges she received her injuries." Consequently, the burden of proving that fact was on the plaintiff, and although the evidence may have fully authorized a finding that it did exist at the place where she was injured, we can see no error in the charge of the court that if they should find that she was injured at a point not on a public street the jury should go no further, but further charged that if they should find that the plaintiff was injured on a public street and that her injury resulted from a defect therein, then applying the applicable rules of law they should determine whether, under these and under the facts proven, the city should be held liable and if so to what extent. Special ground 3 is without merit.
6. Error is assigned upon the admission over timely objection of the following evidence when the Mayor of Rossville was testifying as a witness for the defendant: Q. "Has that crossing ever been dedicated to the City of Rossville that you know of?" A. "Not to my knowledge, no sir." This was not proof of whether there had been a dedication of the street, 1
nor the proper manner of making that proof. The objection should have been sustained and the evidence excluded.
Judgment reversed. Felton, C. J., and Russell, J., concur.