Burd v. City of Atlanta

• Decision Date: 25 February 1936
• Docket Number: 24957.
• Citation: 184 S.E. 412,52 Ga.App. 681
• Parties: BURD v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

184 S.E. 412

52 Ga.App. 681

BURD v. CITY OF ATLANTA.

No. 24957.

Court of Appeals of Georgia, First Division

February 25, 1936

Syllabus by the Court.

The court did not err in sustaining the demurrer and dismissing the petition.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Petition by Samuel I. Burd against the City of Atlanta. To review a judgment dismissing his petition on general demurrer plaintiff brings error.

Affirmed.

Samuel I. Burd brought suit for damages against the city of Atlanta alleging that Butler street is a public street of the city that there has been erected in the center of and across Butler street a railroad bridge or trestle which is supported by, and rests on foundations of steel and concrete with their base on Butler street; that there are three of these supports, one on each side, and one in the center of Butler street, each approximately 2 feet wide at the base; that Butler street is approximately 30 feet wide; that the plaintiff, a stranger, was driving along Butler street about 7:45 p. m., when it was raining very hard and difficult to see in front of the automobile he was driving; that his headlights were burning; that he was driving at the rate of 20 to 25 miles per hour; that the foundation or support of the bridge was dark or dull in color, and had no light or device which could shine or show in the dark at said time and place or constitute a warning of any kind; that the plaintiff did not see the center support of said bridge or trestle until he was within 6 or 8 feet of it, and ran his automobile into it, sustaining certain described injuries for which he sues. He alleges that the city was negligent in failing to keep the street safe for travel, in failing to have the support lighted, in allowing the alleged dangerous condition to continue, it having existed for a number of years and the city having notice thereof.

The court sustained a general demurrer and dismissed the petition, and on this judgment the plaintiff assigns error.

Geo. & John L. Westmoreland, of Atlanta, for plaintiff in error.

J. C Savage, Courtland S. Winn, and Bond Almand, all of Atlanta for defendant in error.

BROYLES, Chief Judge (after stating the foregoing facts).

It appears from the petition that, although the plaintiff was a stranger and not familiar with the street, and although it was dark and raining hard so that the plaintiff could not see more than 6 or 8 feet ahead, he was driving at a speed of 20 to 25 miles an hour. It also appears that the plaintiff's automobile had lights that showed the way only 6 or 8 feet ahead, while the law requires that "the front lamps shall...