36 Ga. App. 66 | Ga. Ct. App. | 1926
This case is before this court upon exceptions by the defendant municipality to the judgment of the superior court overruling the defendant’s general demurrer to the plaintiff’s petition. The suit was for damages for personal injuries, and contained among others the following allegations: When the plaintiff was riding in an automobile along James street in Atlanta “the street and paving beneath said automobile suddenly and without any warning gave way and said automobile plunged nose first into a hole in said street, between fifteen and twenty feet deep,” with the result that the plaintiff was seriously hurt. Under the surface of James street “at the point above described” is a portion of the city’s sewerage and water system. “The culverts supporting said sewerage system at the point above described had become worn, decayed, and disintegrated, and the same was insufficient in capacity and strength to care for the large volume of water and refuse required to pass this point, and the entire system at the point above described had been condemned some two or three years ago by the city authorities although the same was still in use with an
The plaintiff gave notice to the city of his injuries and of his claim for damages as a result thereof, as required by section 910 of the Civil Code (1910),.more than thirty days prior to the filing-of the petition.
The main contention of the counsel for the plaintiff in error is that any default by the city with respect to the proper maintenance of the sewer was a failure to perform a governmental function, that the proximate cause of the plaintiff’s injury was a defective sewer and not a defective street, and that therefore the city is not liable. In support of this contention counsel cite the case of City Council of Augusta v. Cleveland, 148 Ga. 734 (98 S. E. 345), from which it is insisted the case of City of Atlanta v. Trussell, 21 Ga. App. 340 (94 S. E. 649), should be distinguished. (See, in this connection, Lewis v. City of Moultrie, 27 Ga. App. 757, 110 S. E. 625.) In the brief of counsel for the plaintiff in error is the following statement and request: “We are aware that this court has held in the ease of Henning v. City of Atlanta, 35 Ga. App. 24 (131 S. E. 921), to the contrary of the principles claimed in this brief. However, that case will be [carried by] certiorari to the Supreme Court, and pending the decision on the certiorari we ask that the decision in this case be held up.” The petition for certiorari in that case has since been
The test of the sufficiency of a petition is whether the defendant can admit all that the plaintiff alleges and at the same time escape liability. Citizens & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434 (6) (122 S. E. 327); Vandalsem v. Caldwell, 33 Ga. App. 88 (7) (125 S. E. 716). Applying this test to the petition before us, we have no hesitancy in holding that a cause of action is stated, even assuming that no actionable breach of duty is shown except with respect to the defective condition of the street, of which the city either had notice, or which had “existed for a sufficient length of time for notice to be inferred.” Civil Code (1910), § 898; Mayor &c. of Montezuma v. Wilson, 82 Ga. 206 (2) (9 S. E. 17, 14 Am. St. R. 150). The general rule is that a municipal corporation is bound to keep its streets in a reasonably safe condition for travel by the ordinary modes, and will be liable for damages for injuries sustained in consequence of its derelictions in this regard, no matter by what cause the street may have become defective and unsafe, where the city knew or should have known of the defect in time to repair it or to give warning of its existence. Brown v. Mayor &c. of Milledgeville, 20 Ga. App. 392 (1) (93 S. E. 25); Scearce v. Mayor &c. of Gainesville, 33 Ga. App. 411 (1) (126 S. E. 883); City Council of Augusta v. Cleveland, 148 Ga. 734 (5) (98 S. E. 345); Mayor &c. of Savannah v. Waldner, 49 Ga. 316 (1); Mayor &c. of Savannah v. Jones, 149 Ga. 139 (4) (99 S. E. 294).
Judgment affirmed.