35 Ga. App. 484 | Ga. Ct. App. | 1926
Mrs. S. W. Leslie brought her action for personal in-
juries against the City of Macon. The petition as amended was dismissed on motion, and plaintiff excepted. That portion of the amended petition necessary to be considered is as follows: (3) Petitioner shows’ that on or about April 2nd, 1924, she was a pedestrian traveling along what is known as Plum Street, in East Macon. (4) Petitioner shows that at, or near the intersection of said Plum Street and Jones Avenue there is a branch, over which there was constructed at one time a bridge. (5) Petitioner shows that several months ago said bridge, having become in such bad repair, was removed entirely by the City of Macon, its agents and
The petition was further amended by adding” the following paragraphs, numbered here as in the amendment: 2. Petitioner shows further that said branch or gully, at the time she sustained the injuries herein set fort, contained muddy and dirty water, and by reason thereof she could not, in the exercise of ordinary care and diligence, see the broken, uneven and slippery condition of said branch, and she could not, in the exercise of ordinary care and diligence, have known that said foundation would cave in and give way under her feet; that plaintiff stepped carefully and slowly upon the said cement foundation, placing her feet firmly upon said foundation before stepping. 3. The location at which your petitioner was injured, as herein set forth, was and. is within the corporate limits of said City of Macon. 5. Petitioner shows that the said City of Macon knew about the broken, uneven, dangerous, defective, and slippery condition of said street at said location, or that said
The sole question here for solution is whether or not plaintiff failed to use ordinary care to avoid being injured by defendant’s negligence. Plaintiff knew that the ditch was there, that the cement foundation, of the old bridge was in the ditch and that she could not see the condition of the foundation because of the muddy water in the ditch, and yet, without any emergency, she stepped on the foundation, fell, and was injured. In principle this case is controlled by section 4425 of the Civil Code (1910). Sheats v. City of Rome, 92 Ga. 535 (17 S. E. 922); Cook v. City of Atlanta, 94 Ga. 613 (19 S. E. 987); McCart v. Jasper County, 18 Ga. App. 769 (90 S. E. 725). See also Kent v. So. Bell Tel. &c. Co., 120 Ga. 980 (48 S. E. 399), where the rule enunciated in the foregoing authorities is elucidated and sustained, though held inapplicable to its facts. In the words of the code section cited, “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” It appears as a matter of law from the allegations of the petition that plaintiff in this case failed.to use the requisite care, and the court did not err in dismissing the petition on motion.
Judgment affirmed.
