Atlanta Muffler Shop, Inc. v. McSwain, 37413
| Decision Date | 13 November 1958 |
| Docket Number | No. 37413,No. 2,37413,2 |
| Citation | 98 Ga.App. 722,106 S.E.2d 823 |
| Parties | ATLANTA MUFFLER SHOP, INC. v. Sylvia L. McSWAIN, by Next Friend |
| Court | Georgia Court of Appeals |
Greene, Neely, Buckley & DeRieux, James H. Moore, John D. Jones, Atlanta, for plaintiff in error.
N. Forrest Montet, Atlanta, for defendant in error.
Syllabus Opinion by the Court
1. (a) Sidewalks are intended as public throughfares, and any person or corporation placing obstructions on or over them in such manner as to render them dangerous to persons using them in a normal manner is guilty of negligence. Higginbotham v. City of Rome, 24 Ga.App. 286, 100 S.E. 720; Hammock v. City Council of Augusta, 83 Ga.App. 217, 63 S.E.2d 290; Parker v. Mayor, etc., of City of Macon, 39 Ga. 725. The abutting property owner is liable for such obstructions if he has caused or contributed to their existence. Robertson v. Liggett Drug Co., 81 Ga.App. 850, 60 S.E.2d 268; Belk-Matthews Co. of Macon v. Thompson, 94 Ga.App. 331, 94 S.E.2d 516.
(b) The petition here alleges that the defendant owned a truck which was by its employee parked on its premises immediately adjacent to a sidewalk; that the back of the truck was loaded with mufflers, and that these mufflers stuck out over the sidewalk about 2 1/2 feet at a height from the ground of 5 feet, and that the plaintiff while in a normal use of the sidewalk was injured thereby. The petition is sufficient to show actionable negligence on the part of the defendant, Atlanta Muffler Shop, Inc. It is not subject to general demurrer on the ground that there is no allegation as to when the mufflers were loaded on the truck or who put them there, and there is no special demurrer calling for this information. The petition is sufficient to show that the defendant deals in mufflers, that its truck, on its premises, placed there by its employee, was loaded with mufflers, and accordingly it must be assumed that the defendant had control of the property involved. The petition is not subject to general demurrer.
2. (a) In City of Macon v. Stevens, 42 Ga.App. 419, 156 S.E. 718, it was alleged that a plaintiff using the sidewalks was injured by a cannon which had been so mounted in an abutting park as to extend about 8 feet over the sidewalk at a height of 5 feet. The opinion states: 'The fact that the person injured knew of the presence of the cannon in the park, but on the occasion of the injury failed to notice it...
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Young v. Price
...brought to our attention, seems to hold that the placing of any obstruction on a sidewalk is negligence per se. Atlanta Muffler Shop, Inc. v. McSwain, 98 Ga. 722, 106 S.E.2d 823. We believe the holding to be too rigid. However, there is no question that the presence of a hose on a sidewalk ......
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