6 Ga. App. 48 | Ga. Ct. App. | 1909
The plaintiff in error was the owner of a building in the city of Americus to which was attached a wooden shed or awning, extending on and above the sidewalk. On December 22, 1905, a runaway mule, hitched to a wagon, ran against one of the posts of the shed or awning, knocking it out of place; and, on instructions from the chief of police of the cityr, the agent of the plaintiff in error, who had the property in charge, repaired the shed or awning, and, on inspection by the chief of police, it appeared to be in a safe condition. On the following day, without any cause so far as the evidence discloses, the shed or awning fell upon the sidewalk, injuring several persons, one of whom was the minor son of Henry Martin. Henry Martin, as next friend for his minor son, brought suit against the Mayor and Council of the City of Americus, to recover damages sustained by him from the falling of the shed or awning, alleging that it was in a dangerous condition and likely to fall, which condition was known to the city, and charging that the city was negligent in allowing the shed to remain in a dangerous condition on and over the sidewalk of the city. The city served the plaintiff in error, as the owner of the building in question and the shed or awning attached, with timely notice of the filing of this suit, vouching her into court to defend the same. This she declined to do. The city defended
Under the above statement of facts, section 5234 of the Civil Code entitled the city to a judgment against the plaintiff in error as the owner of the property, if she was in fact negligent in the construction of the shed or awning, or was negligent in maintaining it in an unsafe condition. This section makes the judgment rendered against the city in the suit to recover damages, if the owner of the property which caused the damage has been duly vouched into court, conclusive against the owner so vouched, as to the amount and right of the plaintiff to recover in the suit against the city. As stated by Judge Powell in McArthor v. Ogletree, 4 Ga. App. 429 (61 S. E. 859), this section of the code is merely declaratory of the principle announced by the Supreme Court in the case of Western & Atlantic R. Co. v. Atlanta, 74 Ga. 774, which decision itself follows the decision of the Supreme Court of the United States in the case of Chicago v. Robins, 2 Black, 418 (17 L. ed. 298). This principle is also fully discussed in the opinion rendered by Judge Powell in the McArthor case, supra. See also, in this connection, Taylor v. Allen, 131 Ga. 416 (62 S. E. 291); Faith v. Atlanta, 78 Ga. 780 (4 S. E. 3). The law is therefore well settled in this State on the subject now under consideration.
The plaintiff in error, as defendant in the court below, averred in her answer that she had not been duly and timely served with notice of the pendency of the suit against the city to recover damages, and had had no opportunity of appearing and defending the suit. There was no evidence introduced by her in support of this plea, and the positive testimony in behalf of the city established the fact that she was duly and timely vouched into court to defend the suit. This, therefore, left in the case only one question for the consideration of the jury, to wit, whether the plaintiff in error, as the owner of'the properly in connection with which the shed or awning was erected and used, failed to exercise ordinary care
The verdict against the city in the suit for damages settled the question that the shed or awning was defectively constructed or repaired, and that the city was guilty of negligence in permitting it to remain over the sidewalk in such unsafe condition. It also settled the question that the injury to the plaintiff did not result' from the unlawful conduct of the negro boys gathered on the sidewalk, in pushing the awning'down; for if the jury had believed that the unlawful conduct of the negro boys in question had caused the injury to the plaintiff, the city would not have been liable. On this point the trial court held that if the fall of the shed onto the sidewalk was caused by the negligent conduct of the negro boys, the landlord would not be responsible for it, and was not concluded as to this question by the verdict against the city; and the court admitted evidence as to this fact.
We do not think the owner of this shed or awning can escape liability for defective construction or defective repairs because a policeman of the city examined it after the repairs and it appeared to be in a safe condition. The duty was still upon the owner of the property to exercise ordinary care in inspecting the shed or awning, to find out if in fact it was in a safe condition. If the owner placed an obstruction over the sidewalk of the city, which was defectively constructed, or if she maintained it in an unsafe condition, she would be liable for any damages caused by such defective construction or condition; and the fact that the city may have been also negligent in allowing such unsafe obstruction to be erected over the sidewalk, or to remain there in an unsafe condition, would in no wise relieve the owner from liability for her own
The charge, when considered in its entirety, is without material error, but clearly and fully submits the law applicable to the issues, and the verdict is supported by the evidence.
Judgment affirmed.