48 Ga. App. 240 | Ga. Ct. App. | 1934
1. Although “a county is not liable to suit for any cause of action unless made so by statute,” expressly or impliedly (Civil Code, 1910, § 384; Millwood v. DeKalb County, 106 Ga. 743, 32 S. E. 577), since the act of December 29, 1888, a county is “primarily liable for all injuries caused by reason of defective bridges, whether erected by contractors or county authorities.” Civil Code, § 748 (Ga. L. 1888, p. 39); Hackney v. Coweta County, 117 Ga. 327, 328 (43 S. E. 725).
2. “ County authorities are not insurers of the safety of county bridges, but are only bound to exercise ordinary care in maintaining and repairing them.” Warren County v. Evans, 118 Ga. 200 (2), 201 (44 S. E. 986); County of Tattnall v. Newton, 112 Ga. 779, 781 (38 S. E. 47); Early County v. Fain, 2 Ga. App. 288 (2) (58 S. E. 528); Stamps v. Newton County, 8 Ga. App. 229 (5) (68 S. E. 947).
3. While the word “bridge” as used in section 748 of the Civil Code does not include the public road leading thereto, or a drain or opening thereunder, it does include “all the appurtenances necessary to its proper use, and embraces its abutments and approaches. That which is necessary as an approach, to connect the bridge with the highway, is an essential part of the bridge itself.” Howington v. Madison County, 126 Ga. 699, 700 (55 S. E. 941); Mitchell County v. Dixon, 20 Ga. App. 21 (3), 28 (92 S. E. 405); Nicholson v. Jackson County, 20 Ga. App. 394 (2) (93 S. E. 30); Ellis v. Floyd County, 24 Ga. App. 717 (3) (102 S. E. 181); Windom v. Colquitt County, 37 Ga. App. 98 (139 S. E. 158). Accordingly in the instant action against a county for damage from the falling of an automobile-truck through an opening where a public bridge
4. “A traveler on the public highway, exercising due care, although he may know there is some danger in driving over a defective bridge, may recover for injuries thus sustained, unless the danger is obviously of such a character that driving over the bridge, in and of itself, amounts to a want of ordinary care.” Elbert County v. Threlkeld, 145 Ga. 133 (88 S. E. 683); Lincoln County v. Gazzaway, 43 Ga. App. 358 (2) (158 S. E. 647). “The duty resting on a person to avoid the consequences of another’s negligence after it becomes apparent is not absolute, but is only a duty to exercise ordinary care to prevent the consequences of such negligence.” Hamrick v. Haralson County, 41 Ga. App. 203 (3) (152 S. E. 581.) Under the rule of comparative negligence in section 4426 of the Civil Code, “failure to exercise ordinary care on the part of the person injured, before the negligence complained of is apparent, or should have been reasonably apprehended, will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured.” Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802); Wynne v. So. Bell Tel. Co., 159 Ga. 623, 629, (126 S. E. 388). Questions as to diligence and negligence, including contributory negligence, and comparative negligence in reducing damages where that rule is properly involved, are all questions peculiarly for the determination of the jury. Meriwether County v. Gilbert, 42 Ga. App. 500 (2), 501 (156 S. E. 472). In the instant case the petition did not show on its face that a want of ordinary care by the plaintiff was the proximate canse of the in
5. The mere failure to place signs or other warnings informing travelers of the defective condition of a bridge can not be accounted negligence; but the absence of such signs may be alleged in the petition, and may be considered by the jury, in determining whether or not a person approaching the bridge has himself exercised the care and diligence required of him to avoid injury. Haralson County v. Hamrick, 41 Ga. App. 196 (152 S. E. 583); Wilkes County v. Tankersley, 29 Ga. App. 624 (116 S. E. 212); Meriwether County v. Gilbert, supra; Smith v. Colquitt County, 37 Ga. App. 222 (3) (139 S. E. 682). The petition was not demurrable because of such allegations. Nor was it error, as complained in the motion for a new trial, to charge that, te before the plaintiff would be entitled to recover in this case, you must believe that the defendant was negligent in the way and manner set forth in plaintiff’s petition, and that that negligence was the proximate cause of the damage sustained by plaintiff,” and that, teif you should find that the defendant was negligent in the way alleged,in plaintiff’s petition and as a result thereof, the plaintiff’s automobile was damaged, but should further find that a reasonably prudent man, situated as (the driver of the truck was), could have and would have avoided the damage, you should find for the defendant,” and other similar language. The fact that the petition charged in the conjunctive, and not by alternative or disjunctive allegations, that the defendant was negligent in removing the bridge, and in parking a truck so close to the traveled part of the highway and bridge
6. The remaining (2d special) ground of the motion for a new trial is expressly abandoned in' the brief for the plaintiff in error.
Judgment affirmed.