City Of Barnesville v. Sappington, 26783.
| Decision Date | 27 May 1938 |
| Docket Number | No. 26783.,26783. |
| Citation | 58 Ga.App. 27,197 S.E. 342 |
| Parties | CITY OF BARNESVILLE. v. SAPPINGTON. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In an action against a municipality for damages to the plaintiff's automobile, caused by coming into contact with limbs and brush piled adjacent to and extending into the street three or four feet, where it was not shown that the municipality placed the limbs and brush in the street, or that it had actual knowledge of their existence before the accident, and where the only evidence as to the length of time they had existed was that of a witness for the plaintiff who testified that he saw them about two or three hours before the accident, held, such evidence does not support a verdict against the municipality.
Error from Superior Court, Lamar County; G. Ogden Persons, Judge.
Action by J. A. Sappington against the City of Barnesville to recover damages to plaintiff's automobile. Judgment for plaintiff, and defendant brings error.
Judgment reversed.
Christopher & Cantey, of Barnesville, for plaintiff in error.
E. O. Dobbs, of Barnesville, for defendant in error.
J. A. Sappington brought the present action against the City of Barnesville for damages to his automobile. The petition alleged in substance that, "while driving his car carefully and at a reasonable rate of speed, he suddenly and without warning ran into and encountered a pile of brush and limbs of trees, on his right side of the paved portion of the street, intended and used for the traffic of vehicles, which had been negligently placed and left in the roadway of said street, and allowed to remain there by said city authorities, in violation of their duty to keep the streets of said city open and clear of obstructions and safe for traffic thereon." By amendment the plaintiff clarified the above allegations by setting forth that it was "not intended to allege that the brush was actually placed in the street by the city authorities but that they were placed there by parties unknown to plaintiff, either the city authorities or other parties by and with the consent of the city authorities, either expressed or implied, and were allowed to remain there by said authorities and not removed by them, as it was their duty to do." After this amendment the defendant municipality withdrew all of its demurrers theretofore filed, the case proceeded to trial before a jury, and a verdict was returned for the plaintiff in the amount sued for. Exceptions are taken to the overruling of a motion for new trial as amended.
"A municipal corporation is charged with the duty of exercising ordinary care in keeping its streets and sidewalks in a reasonably safe condition, so that persons can pass along them in the ordinary methods of travel with reasonable safety." City of Silvertown v. Harcourt, 51 Ga.App. 160, 179 S.E. 772, 773; Mayor, etc., of City of Rome v. Dodd, 58 Ga. 238; Mayor, etc., of Savannah v. Cullens, 38 Ga. 334, 95 Am. Dec. 398; Simon v. City of Atlanta, 67 Ga. 618, 44 Am.Rep. 739; Williams v. Mayor etc., of Washington, 142 Ga. 281, 82 S.E. 656, L.R.A.1915A, 325, Ann.Cas.l916B, 196; City of Dalton v. Humphries, 139 Ga. 566, 77 S.E. 790; City of Columbus v. Anglin, 120 Ga. 785, 48 S.E. 318; City of Macon v. Smith, 14 Ga.App. 703, 82 S.E. 162; City of Macon v. Stevens, 42 Ga.App. 419, 156 S. E: 718; City of Cedartown v. Brooks, 2 Ga.App. 583, 59 S.E. 836; City of Americus v. Gartner, 10 Ga.App. 754, 74 S.E. 70.
A municipal corporation is thus liable for defects and obstructions existing in one of its public streets created in or placed thereon by its own agents or employees, which renders such street unsafe to persons passing along such street. Mayor, etc., of Savannah v. Waldner, 49 Ga. 316; Town of Belton v. Vinton, 73 Ga. 99; City of Blakely v. Funderburk, 33 Ga. App. 119, 125 S.E. 602; Mayor, etc., of Savannah v. Jones, 149 Ga. 139, 99 S.E. 294; Id., 24 Ga.App. 4, 99 S.E. 469; Holliday v. Mayor, etc., of Athens, 10 Ga.App. 709, 74 S.E. 67; City of Rome v. Stone, 46 Ga.App. 259, 167 S.E. 325; City of Atlanta v. Buchanan, 76 Ga. 585; McFarland v. McCaysville, 39 Ga.App. 739, 148 S.E. 421. Likewise, a municipal corporation is liable for defects which are gradually brought about by the forces of nature, and for a defect or an obstruction created in or placed on a public street by a stranger which renders such street unsafe for travel in the usual modes, where it had notice of such defect or obstruction and failed to exercise ordinary care in remedying or removing the same, or where the defect or obstruction had existed for a sufficient length of time, which, when taken in connection with the nature of the defect or obstruction, and the other pertinent considerations, it could be reasonably said that the city should have known thereof, and had had reasonable time to repair or remove the same. Parker v. City of Macon, 39 Ga. 725, 99 Am.Dec. 486; Chapman v. City of Macon, 55 Ga. 566; Brown v. Mayor, etc., of Milledgeville, 20 Ga.App. 392, 93 S.E. 25; Idlett v. Atlanta, 123 Ga. 821, 51 S.E. 709; City of Rome v. Brooks, 7 Ga.App. 244, 66 S.E. 627; Scearce v. Mayor, etc., of Gainesville, 33 Ga.App. 411, 126 S.E. 883; City of Brunswick v. Glogauer, 158 Ga. 792, 124 S.E. 787; Coker v. City of Rome, 53 Ga. App. 533, 186 S.E. 585; City of Rome v. Brinkley, 54 Ga.App. 391, 187 S.E. 911; Butler v. Atlanta, 47 Ga.App. 341, 170 S.E. 539; Lundy v. City Council of Augusta, 51 Ga.App. 655, 181 S.E. 237; Ellis v. Southern Grocery Store, Inc., 46 Ga.App. 254, 167 S.E. 324; City of Waycross v. Howard, 42 Ga.App. 635, 157 S.E. 247; City of Atlanta v. Hampton, 139 Ga. 389, 77 S.E. 393; City of Americus v. Johnson, 2 Ga.App. 378, 58 S.E. 518; Braddy v. City of Dublin, 41 Ga.App. 603, 154 S.E. 204; Bellamy v. City of Atlanta, 75 Ga. 167; City of Atlanta v. Milam, 95 Ga. 135, 22 S.E. 43; City Council of Augusta v. Tharpe, 113 Ga. 152, 38 S.E. 389; City of Rome v. Stewart, 116 Ga. 738, 42 S.E. 1011; Mayor, etc., of City of Atlanta v. Perdue, 53 Ga. 607; Mayor, etc., of City of Milledgeville v. Cooley, 55 Ga. 17; Enright v. City of Atlanta, 78 Ga. 288; City of Rome v. Suddeth, 116 S.E. 649, 42 S.E. 1032; Boney v. City of Dublin, 145 Ga. 339, 89 S.E. 197, Ann.Cas.l918E, 176; City of Atlanta v. Hawkins, 45 Ga.App. 847, 166 S.E. 262; City Council of Augusta v. Hafers, 59 Ga. 151; Dempsey v. City of Rome, 94 Ga. 420, 20 S.E. 335.
Questions of negligence and diligence are generally for determination by the jury, and where a suit is brought against a municipality, as in the instant case, for injuries to personal property, alleged to have been brought about by the existence of an obstruction in a public street of the municipality which was not shown to have' been placed there by the city, whether or not, where no actual notice of the obstruction is shown, it had existed for a sufficient length of time to charge the city with negligence in failing to discover and remove the same, should be generally left to the determination of the jury, unless it is plain and palpable, as a matter of law, that such defect or obstruction had not existed for a sufficient length of time to charge the municipality with negligence in connection therewith. City of Rome v. Brooks, supra; City of Rome v. Brinkley, 54 Ga.App. 391, 187 S.E. 911, supra; Braddy v. City of Dublin, supra; Enright v. City of Atlanta, supra. Cf. Nunez v. Emanuel County, 22 Ga.App. 219, 95 S.E. 718. The length of time that must elapse from the creation or placing of the obstruction in the street or sidewalk of the municipality, in order to authorize a finding of negligence against the municipality in connection therewith, will, of course, vary according to the location and nature of the defect. A shorter length of time may be sufficient in connection with an open and notorious defect or obstruction, than with a defect or obstruction not notorious and of a minor nature. As to a defect, such as the projection of limbs cut from trees and other trash into the street for several feet, as in the present case, ...
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