51 Ga. App. 291 | Ga. Ct. App. | 1935
Mrs. Viola Quinn filed suit in Baldwin superior court against the Georgia Power Company and A. E. Schaeffer, alleging that her husband John Quinn was killed because of the joint negligence of the defendants, on January 13, 1934. The petition alleged: that on the night in question the plaintiff’s husband was proceeding south in an automobile along South Wayne street in the City of Milledgeville, in “a slow, orderly, careful, and reasonable manner, at a speed not exceeding 15 miles per hour,” and that her husband’s ear was well on its right-hand side of the street, and was being driven with due caution and regard for the rights of the public; that on reaching a point on said street at a point between Screven street and the fair-grounds gate, where the Georgia Railroad dummy line crosses, and immediately beneath a point where a street-light was accustomed to be lit, the automobile in which plaintiff’s husband was riding was run into and struck by an automobile driven by one of the defendants, Schaeffer; that Schaeffer at the time was under the influence of intoxicating liquors and proceeding at a dangerous and reckless rate of speed, in excess of forty-five miles an hour, in violation of the laws of the State
A general demurrer of the Georgia Power Company to the petition was sustained, and the plaintiff excepts.
“There is no common-law duty resting on a municipal corporation to light its streets; and in the absence of any such duty imposed upon it by statute, it is not liable merely for not installing lights upon its streets, or upon a particular street, even though it may have power to do so. . . If the city undertakes to light a street, it may be liable for negligence in the manner in which the work is done,—as for carelessness in the manner of erecting lampposts, so that one falls on a passer, or in so negligently lajdng a pipe or wire that a passer is caused to fall or be injured, or the like. Such things do not fall within the exercise of discretion in determining whether a street shall be lighted, but are ministerial acts in connection with carrying out the decision.” Williams v.
It is insisted that the cases of Fowler v. Athens City Waterworks Co., 83 Ga. 219 (9 S. E. 673, 20 Am. St. R. 313), Holloway v. Macon Gas-Light & Water Co., 132 Ga. 387 (64 S. E. 330), and Gnann v. Coastal Public Service Co., 44 Ga. App. 317 (160 S. E. 807), have no application under the facts here alleged. In those cases it was held that a contractor who agrees to furnish water pressure in a city up to a certain standard of pressure is not liable to a private citizen, whose property is destroyed by fire which could have and would have been extinguished save for the failure of such contractor to comply with the contract with the city. Plaintiff in error insists that the delivery of water in bulk to the city was a distinguishing characteristic of the decisions, and that they are differentiated on their facts from the present case. It is alleged in the case at bar that the Georgia Power Company contracted with the City of Milledgeville to furnish electric-lights at certain named places for the purpose of lighting the streets of the city, and that on a particular occasion it failed to have one of the lights burning. In the Fowler case, supra, it was alleged that the waterworks company was to maintain a certain pressure all over the mains in the City of Athens, and that on a certain occasion it failed so to do, and caused a named injury and damage, because when plaintiff’s house was on fire the waterworks company failed to have the proper pressure in the hydrants which served the defendant’s property and the fire department was unable to extinguish the fire. Judge Pish, in the Holloway case, supra, cited an exhaustive list of authorities on this principle. There was no privity of contract between the plaintiff in this ease and the Georgia Power Company and the “mere breach (by omission only) of a contract entered into with the public not being á tort, direct or indirect,” the plaintiff’s petition states no cause of action against the Georgia Power Company. As was said in the Holloway case, “Whatever breach of duty it may have committed by its failure so to do upon the occasion of the fire in question was a breach of the duty which it owed to the city, and not a breach of any public duty which it owed to plaintiff.”
Judgment affirmed.