58 Ga. App. 27 | Ga. Ct. App. | 1938
J. A. Sappington brought the present action against the City of Barnesville, for damages to his automobile. The petition alleged in substance that “while driving his car carefully and at a reasonable rate of speed, he suddenly and without warning ran into and encountered a pile of brush and limbs of trees, on his right side of the paved portion of the street, intended and used for the traffic of vehicles, which had been negligently placed and left in the roadway of said street, and allowed to remain there by said city authorities, in violation of their duty to keep the streets of said city open and clear of obstructions and safe for traffic thereon.” By amendment the plaintiff clarified these allegations by setting forth that it was “not intended to allege that the brush was actually placed in the street by the city authorities, but that they were placed there by parties unknown to plaintiff, either the city au
“A municipal corporation is charged with the duty of exercising ordinary care in keeping its streets and sidewalks in a reasonably safe condition, so that persons can pass along them in the ordinary methods of travel with reasonable safety.” City of Silvertown v. Harcourt, 51 Ga. App. 160 (179 S. E. 772); City of Rome v. Dodd, 58 Ga. 238; Mayor &c. of Savannah v. Cullens, 38 Ga. 334 (99 Am. D. 398); Simon v. Atlanta, 67 Ga. 618 (44 Am. R. 739); Williams v. Washington, 142 Ga. 281 (82 S. E. 656, L. R. A. 1915A, 325, Ann. Cas. 1916B, 196); City of Dalton v. Humphries, 139 Ga. 566 (77 S. E. 790); City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318); City of Macon v. Smith, 14 Ga. App. 703 (82 S. E. 162); City of Macon v. Stevens, 42 Ga. App. 419 (156 S. E. 718); City of Cedartown v. Brooks, 2 Ga. App. 583 (59 S. E. 836); City of Americus v. Gartner, 10 Ga. App. 754 (74 S. E. 70). A municipal corporation is thus liable for defects and obstructions existing in one of its public streets, created in or placed thereon by its own agents or employees, which render such street unsafe to persons passing along such street. Mayor &c. of Savannah v. Waldner, 49 Ga. 316; Town of Belton v. Vinton, 73 Ga. 99; City of Blakely v. Funderburk, 33 Ga. App. 119 (125 S. E. 602); Mayor &c. of Savannah v. Jones, 149 Ga. 139 (99 S. E. 294), s. c. 24 Ga. App. 4 (99 S. E. 469); Holliday v. Athens, 10 Ga. App. 709 (74 S. E. 67); City of Rome v. Stone, 46 Ga. App. 259 (167 S. E. 325); City of Atlanta v. Buchanan, 76 Ga. 585; McFarland v. McCaysville, 39 Ga. App. 739 (148 S. E. 421). Likewise a municipal corporation is liable for defects which are gradually brought about by the forces of nature, and for a defect or an obstruction created in or placed on a public street by a stranger, which renders such street unsafe for travel in the usual modes, where it had notice of such defect or obstruction and failed to exercise ordinary care in remedying or removing the same, or where the defect or obstruction had existed for a sufficient length
Questions of negligence and diligence are generally for determination by the jury; and where a suit is brought against a municipality, as in the instant case, for injuries to personal property, alleged to have been brought about by the existence of an obstruction in a public street of the municipality which was not shown to have been placed there by the city, the issue whether or not, where no actual notice of the obstruction is shown, it had existed for a sufficient length of time to charge the city with negligence in failing to discover and remove the same, should be generally left to the determination of the jury, unless it is plain and palpable, as a matter of law, that such defect or obstruction had not existed
In the present case the obstruction complained of was a pile of brush and limbs of trees, which limbs and brush, according to the evidence, projected three or four feet into the street. It appears that the accident occurred “about 6:30 or 7 o’clock.” There was no evidence that the defendant municipality had actual notice of the existence of the obstruction before the accident. The only evidence introduced tending to show how long the obstruction existed before the accident was the testimony of a witness for the plaintiff, to the effect that to the best of his recollection he saw the same pile of brush and limbs in the street about 4 o’clock the same afternoon of the accident. We think it is plain and apparent that
The ruling here made is not contrary to the decisions in Brown v. Milledgeville, supra, where the petition alleged that the defect in the sidewalk had existed “for a long period of time;” Idlett v. Atlanta, supra, where the defect (a hole in the sidewalk) was alleged to have existed “about six months;” City of Brunswick v. Glougauer, supra, where the defect (an irregular place in the sidewalk) was shown to have existed “for a number of years;” Coker v. Rome, supra, where the petition alleged that the defect (a hole in the sidewalk) had existed for “six months;” City of Rome v. Brinkley, supra, where the petition alleged that the defect (unevenness of the sidewalk) had existed “for more than two years;” Lundy v. Augusta, supra, where the petition alleged that the defect (accumulation of sand in the street) had existed for “a number of days;” City of Waycross v. Howard, supra, where it was shown that the obstruction in the street (an iron rod about three fourths of an inch in diameter, and about twenty-four feet in length) had existed “for more than a week;” Braddy v. Dublin, supra, where it was shown that the defect (a-loose cap of a water-meter box situated near the edge of a sidewalk) had existed for about twenty-four hours, and that after the defect was created by a plumber the city plumbing inspector made an inspection about the premises; City of Rome v. Dodd, supra, where it was shown that the defect (a large hole in a bridge) had existed for six weeks; City of Rome v. Stewart, supra, where it was shown that the defect (an improperly constructed iron cylinder used, in the language of some of the witnesses, as a “water cut-off,” which was placed on the sidewalk) had existed for a “number of years,” and “that different persons had fallen by coming in contact with the same;” City of Atlanta v. Perdue, supra, where it was shown that the defect (an excavation) had existed “two or three weeks;” City of Atlanta v. Hawkins, supra, where it was shown that the defect (defective lid to
Judgment reversed.