Butler v. City Of Atlanta

• Decision Date: 16 August 1933
• Docket Number: No. 22818.,22818.
• Citation: 170 S.E. 539,47 Ga.App. 341
• Parties: BUTLER. v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

47 Ga.App. 341

170 S.E. 539

BUTLER.

v.CITY OF ATLANTA.

No. 22818.

Court of Appeals of Georgia, Division No. 2.

Aug. 16, 1933.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by G. C. Butler against the City of Atlanta and another. Suit was dismissed as to named defendant, and plaintiff brings error.

Affirmed.

W. H. Terrell and J. E. Kelly, both of Atlanta, for plaintiff in error.

J. L. Mayson, C. S. Winn, and J. C. Savage, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. "Without express legislative authority, a municipality can not grant to any person the right to erect or maintain a structure or obstruction in a public street." Civ. Code 1910, § 894. Obstructions "for purely private gain" are not permissible. "Streets are primarily intended for the use of travelers, " and "any permanent structure in a street which materially interferes with travel thereon is a public nuisance. Permanent structures which do not interfere with travel, and which are erected for public purposes, such as telegraph and telephone poles, and the like, are permissible." City Council of Augusta v. Reynolds, 122 Ga. 754, 756, 758, 50 S. E. 998, 69 L. R. A. 564, 106 Am. St. Rep. 147. "Where it is not prohibited by law, a city may legally erect and maintain an obstruction in one of its streets, provided the obstruction is not dangerous and does not constitute an unreasonable interference with the lawful use of the street;" and in such case "the maintenance of the [structure] does not constitute negligence either as a matter of law or in fact." South Georgia Power Co. v. Smith, 42 Ga. App. 100, 155 S. E. 80. A railroad is expressly permitted by statute "to construct its road across, along, or upon, or to use any * * * street, " with "the written consent" of the municipal authorities (Civ. Code, § 2585, par. 5), which is presumed in the absence of allegation or showing to the contrary. Townsend v. Georgia Power Co., 44 Ga. App. 132, 137, 160 S. E. 712. But streets being "intended primarily for the purposes of travel and transportation, " their use by a street railway company under authority of the statute must be for similar purposes. It "must adjust itself to the rights of the public in the same way that the public must adjust itself to the rights of the company. The railroad company can not unreasonably obstruct the street, or interfere with travel." Atlantic, etc., Ry. Co. v. Montezuma, 122 Ga. 1, 49 S. E. 738, 739.

2. The city of Atlanta by its charter may "widen, straighten, or otherwise change" its streets and sidewalks. Ga. Laws 1874, p. 131, §§ 60, 62. By statute and for the foregoing reasons, the municipality and street railroad companies operating within its limits have the power, without being guilty of maintaining a nuisance or committing thereby an act of negligence per se, to authorize the construction and maintenance of, and to construct and maintain under such municipal authority, what are termed "safety islands" or "safety zones" in streets at the side of a street car line, for the use and safety of the public from automobile and other traffic when entering and departing from street cars. Such zones have been generally recognized by the courts of other jurisdictions as a safety device of well-known efficiency for the protection of pedestrians and the reduction of casualties, the purpose of which is not to obstruct the thoroughfares, but to render them safer for travel. City of Jacksonville v. Bell, 93 Fla. 936, 112 So. 885, 53 A. L. R. 163; City of Cleveland v. Gustafson, 124 Ohio St. 607, 180 N. E. 59, 79 A. L. R. 1325; Seibert v. Mo. Pae. Ry. Co., 188 Mo. 659. 87 S. W. 995, 70 L R. A. 72; District of Columbia v. Manning, 57 App. D. C. 156, 18 F.(2d) 806, 53 A. L. R. 167.

3. "If a municipal corporation has not been negligent in constructing or repairing the same, it is not liable for injuries resulting from defects in its streets when it has no notice thereof, unless such defect has existed for a sufficient length of time for notice to he inferred." Civ. Code 1910, § 898; Mayor, etc., of Montezuma v. Wilson, 82 Ga. 206 (2), 9 S. E. 17, 14 Am. St. Rep. 150. "The general rule of law is, that a municipal corporation is bound to keep its streets and sidewalks in a safe condition for travel in the ordinary modes, by night, as well as by day, and if it fail to do so, it is liable for damages for injuries sustained in consequence of such failure." City of Atlanta v. Perdue, 53 Ga. 607, 608; Brown v....