142 Ga. 281 | Ga. | 1914
The plaintiff sought to recover damages on account of a personal injury alleged to have resulted from stepping, at nigbt, from a sidewalk into a depression caused by the lowering of the grade of the street by a city a considerable time before the injury, but of which he was not aware. It was alleged, that the difference in level between the sidewalk and the street proper was about eight feet, which was very dangerous, especially in the absence of a light at night; that there had been no light ther'e for more than three weeks; that this had been brought to the attention of the city, which had promised to have a light put there; and that the defendant was negligent in failing to provide a railing or obstruction to protect persons traveling along the sidewalk. There was a verdict for the defendant. The plaintiff moved for a new trial, which was refused, and he excepted.
If a municipality has once undertaken to light its streets, or a particular street, the decisions are not in entire harmony as to whether it is liable for a failure to do so at a particular time, or for negligence in furnishing an insufficient light, or for failure to light a street in the usual manner. Without undertaking to discuss the different cases and the facts involved in them, it will be found in some instances that the conflict may be reconciled by means of another rule which imposes on a municipality the duty of exercising ordinary diligence to keep its streets in reasonably safe condition for passage in the ordinary methods, and also the duty, if it creates an obstruction or unsafe condition in a street, or permits such a condition to exist after notice, to use proper precaution to prevent injury to passers. Accordingly, the better rule would seem to be, that, if the city performs its duty with reference to keeping its streets in reasonably safe condition, the mere absence of an ordinary street light at a given point will not constitute such negligence as to render the city liable. But if the question is whether a city has performed its duty in regard to keeping a street in a reasonably safe condition, or whether it has been negligent in that regard, and in respect to failing to erect proper safeguards or to placing proper lights at a dangerous place where an injury occurs, the character of the light at that point, or its absence, may be shown as a circumstance bearing on the question of negligence.
In Gaskins v. City of Atlanta, 73 Ga. 746, a person undertook to cross a street in the dark when the lamps had not been lighted, and was run over by a horse hitched to a wagon and going down the street without a driver, and was injured. The action was dismissed on demurrer, and this judgment was affirmed. Two points were ruled: first, that for discretionary acts 'a city is not liable; and second, that, even if the city was at fault in not having its gas lamps lighted, this was not the proximate cause of the injury. There was no contention that the street was in a defective or dangerous condition, or that 'any liability on the part of the city arose
In several of the eases in other jurisdictions in which it was held that, after a city had voluntarily undertaken to light its streets, a failure to do so might furnish a ground of liability, it will be found that the facts involved also some defect, obstruction, or excavation in the street. In White v. City of New Bern, 146 N. C., 447 (59 S. E. 992, 13 L. R. A. (N. S.) 1166 (see note), 125 Am. St. R. 476), Hoke, J., said: “In the absence of statutory requirement, a city is under no legal obligation to light its streets, and such obligation does not arise or exist from the fact that the city has been given the power to light them. And where a city or town has undertaken the duty, the placing and character of the lights must be allowed to rest very largely in the discretion of the authorities. . . Undoubtedly, temporary obstructions and hindrances on a highway, or permanent conditions, may be such that an absence of lights at the particular locality would import negligence, and to this principle possibly may be referred the decision in Chicago v. Powers, 42 Ill. 169, 89 Am. Dec. 418. But when the streets of a municipality are otherwise reasonably safe, the weight of authority and the better reason are to the effect that neither the absence of
In the case at bar the plaintiff alleged, and introduced evidence tending to prove, that the city left a deep cut in its street so that the roadway at that point was eight feet below the sidewalk, making a dangerous declivity; that there were no safeguards and no lights at that place; that street lights had been there, but had not been lit for three or four weeks; and that the plaintiff was injured by stepping from the sidewalk in the dark. Under these facts, it limited the scope of the evidence too much to charge that the city was not required to keep the place lighted, and that the court only let in evidence as to the lights for the purpose of showing whether or not the plaintiff could have seen or known the danger over which he was passing.
In overruling a demurrer in the presence of the jury, it was not a practice to be commended for the judge to say it was a very doubtful ease, but he would let it go to the jury. But whether or not this would require a new trial, it is not likely to occur on a second trial granted on other grounds. „
Judgment reversed.