31 S.E.2d 612 | Ga. Ct. App. | 1944
1. A municipality is bound to keep its streets in a reasonably safe condition for travel by night as well as by day, and is responsible if it fails to exercise ordinary care in this respect, where it knows or should know that the street is in an unsafe condition.
(a) Where a defect in a street has existed for such a length of time that the city in the exercise of ordinary care and diligence ought to have discovered and remedied it, actual notice of such defect is unnecessary.
(b) It would seem from the allegations of the petition that the defect in the street here complained of was brought about by the forces of nature and a failure on the part of the city to repair the same for a number of years.
2. "A street is a road or public way in a city, town, or village, laid out and open for travel by the public." As against the demurrer, the allegations of the petition with respect to the street in question were sufficient to show that the city was under a duty to keep it in repair.
3. Under the allegations of the petition, it is a question for a jury to determine whether the plaintiff's injury was proximately caused by the negligence of the defendant, or whether her injury was due to her own negligence, or failure on her part to exercise due care for her own protection.
4. The petition set out a cause of action, and the court erred in sustaining the demurrer and dismissing the action.
The defendant demurred generally to the petition before it was amended on the ground that it set forth no cause of action, and specially to paragraph 3, which alleged that the plaintiff was injured by stepping into a gully-like depression in Reed Street, on the ground that it was not alleged what "a gully-like depression" is, and that the court could not take judicial cognizance of that term. The general demurrer was overruled on condition that the plaintiff amend to meet the special demurrer to paragraph 3 of the petition, the special demurrer to that paragraph being sustained *597 with the privilege to amend. After the petition was amended by substituting a new paragraph 3, as above set out, the defendant renewed its demurrers, general and special, and further demurred to the petition as amended on the ground that it failed to set forth a cause of action; that the amendment failed to meet the order on the special demurrer to paragraph 3; and that the petition as amended showed that the plaintiff's injury was due to her own negligence — that she had a like or similar knowledge of Reed Street to that the defendant had, and that she could have avoided her injury by the exercise of due care for her own protection. The court sustained the demurrer on all grounds and dismissed the action, and the plaintiff excepted.
The plaintiff's amendment was sufficient to meet the special demurrer to paragraph 3 of the original petition as will appear from the allegations contained in paragraph 3 as amended, which alleges that there was a gully approximately ten inches deep in Reed Street, where the plaintiff was injured, and that within a few inches of said gully two or three large rocks were imbedded in the street and stuck up or protruded above the surface of the street; that she did not know of the existence of said gully and rocks in Reed Street, that it was dark and she could not and did not see the gully or the rocks, and in addition to the natural darkness of the night this street at the time and place in question was additionally darkened on account of the high banks to the street and the weeds and other undergrowth there surrounding it, and that under those circumstances, and without fault on her part, she stumbled into said gully and was thrown against said rocks and her ankle was injured as alleged in the petition.
It is alleged in the petition that the defendant was negligent and did proximately cause the plaintiff's injuries, in that the city failed for a period of approximately six years to repair the gully-like and rock-covered Reed Street in the City of Atlanta, at the place where the plaintiff was injured. A municipality is bound to keep its streets in a reasonably safe condition for travel by night as well as by day, and is responsible if it fails to exercise ordinary care in this respect, where it knows or should know that the street is in an unsafe condition; and where a defect in a street has existed for such a length of time that the city in the exercise of ordinary care and diligence ought to have discovered and remedied *598
it, actual notice of such defect is unnecessary. Whether a defect in a city street is such as to give a right of action to a person injured on account of the defect complained of is ordinarily a question for a jury to determine under the facts and circumstances alleged. Mayor c. of Buford v. Medley,
As against the general demurrer the allegations of the petition must be taken as true. Of course, the plaintiff must show by her petition that the negligence of the defendant was the proximate cause of the injury complained of. The petition in the present case sets forth a defect in the street in question, the circumstances and conditions existing at the time the street was being used by the plaintiff, and it is alleged that the proximate cause of her injury was due to the negligence of the defendant in failing to repair the street in question for a period of six years. Under the allegations of the petition, it can not be said as a matter of law that the plaintiff was not in the exercise of proper and due care for her own safety, and that her injury was caused by her own negligence. Where a defect has existed in a street for such length of time that reasonable diligence in the performance of their duties by the proper municipal authorities the defect should or ought to have been known, notice will be presumed, and proof of actual knowledge will not be necessary in order to render the city liable for injuries occasioned by such defect. It would seem from the allegations of the petition that the defect in the street here complained of was brought about by the forces of nature and the failure on the part of the city to repair the same for a number of years.
There was no demurrer to the petition on the ground that it was not alleged that Reed Street was a public street, but counsel for the defendant in error in their brief here raise the question, and cite the cases of City of Atlanta v. Keiser,
In Robins v. McGehee,
Under the allegations of the petition, it is a question for a jury to determine whether the plaintiff's injury was proximately caused by the negligence of the defendant, or whether her injury was due to her own negligence, or failure on her part to exercise due care for her own protection. The petition set out a cause of action, and the court erred in sustaining the demurrer and dismissing the action.
Judgment reversed. Felton and Parker, JJ., concur.