110 Ga. 90 | Ga. | 1900
The plaintiff instituted an action against the Town of Tennille,in the county court, and alleged in herpotition that by the charter of said town it was made the duty of the municipal authorities to keep the streets in good order and prevent injury or annoyance to the public or individuals from anything dangerous, offensive, or unwholesome; that one of the streets in said town called Main street was much traveled and used by the citizens and others, and it was a matter of public concern that said street should be kept in order and safe for travel; that in the year 1897 one Howard, with the full knowledge and consent of the town, did recklessly and tortiously ride a bicycle on said street, a walk intended only for pedestrians; that the plaintiff in error was quietly walking ¿long the sidewalk about dark, when, without fault or negligence on her part, she was run over by Howard while riding his bicycle, and was greatly injured, etc.; that Howard is insolvent and she can recover no damages
Mr. Tiedeman in his work on Municipal Corporations, § 327, declares that “It is a well-settled rule, that for the non-performance of a discretionary duty, particularly if the duty be of a public nature, no private action for damages can be maintained against the corporation, for the reason that discretionary powers are intended to be exercised only when the interests of the public demand their exercise; and the question whether the public interests do or do not demand it is one for the municipality to determine;” citing authorities from the courts of last resort of a large number of the different States. In discussing the case of Davis v. Montgomery, 51 Ala. 139, the Supreme Court of Alabama said that the city corporation is bound to do what it had assumed to do upon a sufficient consideration, to wit, to keep its streets in order for safe travel and passage of the people and their property; that for injuries incurred by a failure to perform the duties so undertaken it would be liable to respond in damages; but the proposition that the city is liable for damages occasioned by nuisances erected in said city, if the corporate authorities fail to abate them before the injury'accrues, is not law, either as declared in the charter, or deduced from principle; and that for a failure to exert its judicial power the city is not liable, unless, possibly, it acts not only negligently, but corruptly. In the case of Rivers v. Augusta, 65 Ga. 376, where it appeared that a minor child while walking on the sidewalk of one of the streets in the City of Augusta was set upon and seriously injured by a cow which was running at large, and it appeared that the city council had passed an ordinance forbidding the running at large of cattle in its streets, but had subsequently suspended its operation indefinitely, this court held, that a failure to perform acts