Boney v. City Of Dublin

• Decision Date: 14 June 1916
• Docket Number: (No. 469.)
• Citation: 89 S.E. 197,145 Ga. 339
• Parties: BONEY. v. CITY OF DUBLIN.
• Court: Georgia Supreme Court

89 S.E. 197

(145 Ga. 339)

BONEY.

v.CITY OF DUBLIN.

(No. 469.)

Supreme Court of Georgia.

June 14, 1916.

(Syllabus by the Court.)

Error from Superior Court, Laurens County; J. L. Kent, Judge.

Action by Mrs. D. E. Boney against the City of Dublin. Judgment for defendant, and plaintiff brings error. Affirmed.

J. S. Adams and Larsen & Crockett, all of Dublin, for plaintiff in error.

W. C. Davis, of Dublin, for defendant in error.

ATKINSON, J. This is a case of injury to a pedestrian, resulting from a fall caused by slipping when stepping on a banana peel which was on a much-used sidewalk in the city of Dublin. It is not a case of defect in the sidewalk arising out of improper construction or failure to repair, but of mere omission to remove an object from the sidewalk which was not shown to have been placed there by the municipality or by its permission. The basis of liability relied on by the plaintiff is negligence on the part of the defendant, and for nonperformance of its ministerial duty relative to keeping its sidewalks in a safe condition. The degree of care exacted of municipal corporations in regard to keeping their sidewalks in safe condition for pedestrians to walk on is ordinary care. Civil Code, § 897; City of Atlanta v. Hampton, 139 Ga. 3S9, 77 S. E. 393; Dillon on Municipal Corporations, §§ 1697, 1711; Mayor, etc., of Jackson v. Boone, 93 Ga. 662(3), 666, 20 S. E. 46. The case of City of Rome v. Suddeth, 116 Ga. 649, 42 S. E. 1032, was where two large stones had been placed at the intersection of two streets, and the plaintiff's horse, becoming frightened at the stones, ran away and caused injury. A judgment overruling the defendant's general demurrer was reversed. In the course of the opinion it was said by Candler, J.:

''While the declaration alleges that the city allowed the stones to be so placed, and further charges that the city was negligent in permitting them to remain as they were, it does not necessarily follow that the city had actual notice that the stones had been put upon the side of the street as charged in the petition. Municipal corporations are not liable for defects in their streets, when there has been no negligence in constructing or repairing them, 'when it has no notice thereof, unless such defect has existed for a sufficient length of time for notice to be inferred.' Pol. Code § 749. It follows that where an object or objects which would not ordinarily cause a reasonably roadworthy horse to take fright are placed, by some one other than a servant or agent of the municipal corporation, on the side of a street, as a result of which one is injured by the running away of a horse frightened at such object, unless the city authorities had actual knowledge, or a sufficient time had elapsed to charge them with notice of the fact that these objects were on the streets, the corporation should not be held liable; and a declaration which, reasonably construed, alleges that the objectionable objects were placed upon the street by some one other than a servantof the city, and which does not allege that the city authorities knew or were chargeable with knowledge that this state of facts existed before the injuries complained of were received, is defective. Enright v. Atlanta, 78 Ga. 289."

See, also, Civil Code, § 898.

The doctrine announced in the foregoing excerpt is recognized in the later cases of Bowen v. Smith-Hall Grocery Co., 141 Ga. 724, 82 S. E. 23, L. R. A. 1915D, 617; Aaron v. Coco Cola Bottling Co., 143 Ga. 153, 84 S. E. 556. The case of De Velin v. Swanson (R. I.) 72 Atl. 388, was where a person sustained injury by slipping from having stepped on a banana peel on the floor of a store. It was held that, "in the absence of evidence that the defendant [the storekeeper] had notice that the peel was on the floor, or that it had been there so long as to constitute implied notice, " the defendant was not liable. The case of Archer v. Town of Johnson City (Tenn....