42 Ga. App. 214 | Ga. Ct. App. | 1930
Lead Opinion
The maintenance of a sewerage-drainage system of a municipality in a good working and sanitary condition is á governmental function (City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S. E. 345), and the city is not liable for personal injuries to one who stepped into a basin-like depression in the pavement on a street, where the depression was made and maintained by the city for the purpose of forming a catch-basin to carry surface water into one of its sewers, and where the catch-basin or depression was a part of the general engineering plan of the city’s sewerage-drainage system, and where the depression did not cause any dangerous defect or obstruction in the street or adjacent sidewalks. The allegation in the petition in the instant case, that the catch-basin made the street “unsafe and dangerous for persons using said street in the usual and ordinary modes of travel,” is merely a conclusion of the pleader and is not supported by the facts set out in the petition as amended. It follows that the petition failed to set out a cause of action, and the court erred in overruling the general demurrer. See, in this connection, City Council of Augusta v. Little, 115 Ga. 124 (41 S. E. 238) ; Smith v. Atlanta, 21 Ga. App. 172 (93 S. E. 1022) ; Harrison v. Atlanta, 26 Ga. App. 727 (107 S. E. 83); City Council of Augusta v. Cleveland, supra.
Judgment reversed.
Dissenting Opinion
dissenting. I do not disagree to the proposition that the maintenance of a sewerage and drainage system is a governmental function; but under the petition in the case I think it is sufficiently pleaded that the catch-basin .caused a dangerous defect and an unnecessary obstruction in the street. For this reason I am of the opinion that the court did not err in overruling the general demurrer.
