Bryan v. Mayor of Macon

91 Ga. 530 | Ga. | 1893

Bleckley, Chief Justice.

The court erred in dismissing the action on general demurrer to the declaration. Taking the facts, as alleged, to be true, the plaintiff sustained a serious personal injury, while free from fault on his part, by falling into the unprotected mouth of a sewer which opened into one of the public streets of the city, along which he was passing. The dangerous condition of the mouth of the sewer was caused by the negligence of the defendant, was known to it, and had existed for ten days. The declaration explains how the plaintiff came to be near the mouth of the sewer and why he did not see it, but fell into it unawares. He was driving along the street, his mule became frightened, he leaped from the buggy, and, while his attention was directed to th& frightened mule, he fell into the mouth of the sewer. It is not alleged precisely how the sewer was connected with the street relatively to the position of the opening,, hut it is alleged that the danger it occasioned was due to the defendant’s negligence. Can the defendant admit that the plaintiff was injured, that he was without fault, that the city was negligent, and that a dangerous hole left open, by its negligence was the one into which he fell, and yet avoid liability ? Clearly not. The declaration may be defective in form by reason of not setting out with more particularity and distinctness the position of the hole, whether at the edge of the street, or how far inside, etc., etc.; but it is good in substance, and to withstand a general demurrer nothing more is requisite.

Judgment reversed.