101 Ga. App. 286 | Ga. Ct. App. | 1960
This case was previously before this court, and upon consideration of the bill of exceptions herein this court held that the written notice given to the municipality with respect to the negligent act on the part of the. municipality was insufficient and that for that reason the petition was subject to general demurrer. See City of Summerville v. Aldred, 100 Ga. App. 66 (110 S. E. 2d 73). The Supreme Court granted certiorari to review that judgment and reversed the Court of Appeals, holding in effect that the notice was legally sufficient and that the petition was not subject to general demurrer on account of any insufficiency in such notice. See Aldred v. City of Summerville, 215 Ga. 651 (113 S. E. 2d 108). This court now has for consideration the question of whether the petition otherwise stated a cause of action, which is presented by the assignment of error on the overruling of the general demurrer to the petition as amended, and the question of whether the petition was subject to any of the special demurrers filed thereto. Such additional facts as are necessary to a clear understanding of the rulings made will be stated in the opinion.
With regard to the general demurrer, it is contended that the - petition alleges no facts showing a causal connection between the defect complained of and the injury sustained by the plaintiff. In substance, the petition alleges that the defendant maintained a manhole in the center of the street with a lid, or cover, thereon which was insecure and ill fitting, and which previously on occasions enumerated in the petition had been kicked out of place or turned up in such a manner as to be noticed by
Where the allegations of fact contained in the petition show that the defendant is a municipal corporation, such allegations are sufficient to support the conclusion alleged also in the petition that the defendant had a ministerial duty to exercise
After alleging that the manhole cover was loose and did not have a proper fit, and that the defendant had had notice on specified occasions that the manhole cover had been out of place and turned up, the plaintiff alleged that the defendant was negligent in failing to properly maintain said manhole in a reasonably safe and proper condition for travel, and that it was negligent in failing to exercise ordinary care to maintain the street in a reasonably safe condition after having actual notice of the dangerous condition of the street and the manhole. These allegations were demurred to on the ground that they were vague, uncertain and indefinite and that they consisted of general allegations of negligence without any specification of alleged acts of the defendant as would constitute negligence on the part of the defendant. Neither of these grounds of demurrer was meritorious.
The eighth ground of special demurrer attacks the allegations of the petition to the effect that immediately after the injury complained of the mayor of the defendant municipality and the city clerk and the city engineer, together with police officers named, were present at the scene of the wreck, on the ground that such allegations were immaterial, irrelevant and impertinent, and illustrated no issue in the case. These allegations were not subject to special demurrer for any of the reasons urged.
In paragraph 5 of the petition as amended it was alleged that the manhole had a metal neck, which extended above the surface of the street approximately two to three inches and which extension above the surface increased the danger of the manhole to passing traffic when said manhole had an improper fitting lid. These allegations were demurred to on the ground that they were a conclusion of the pleader unsupported by any facts to show how or in what way such extension may have increased the danger to passing traffic.
Paragraph 15 of the petition alleged that it was dangerous and negligent to permit a manhole with an improper fitting lid to remain in the center of a public street. This allegation was de
It follows that the trial court did not err in overruling the general demurrer to the petition, or in overruling any of the special demurrers except paragraphs 3 and 4 of the renewed demurrers referred to above. ,
Judgment iaffirmed in part and reversed in part.