City of Greensborough v. McGibbony

• Decision Date: 09 April 1894
• Citation: City of Greensborough v. McGibbony, 20 S. E. 37, 93 Ga. 672 (Ga. 1894)
• Parties: CITY OF GREENSBOROUGH v. McGIBBONY.
• Court: Georgia Supreme Court

20 S.E. 37

93 Ga. 672

CITY OF GREENSBOROUGH v. McGIBBONY.

Supreme Court of Georgia

April 9, 1894

Syllabus by the Court.

1. Although the charter of a city may not, in express terms confer the power or impose the duty of keeping the streets and bridges within the corporate limits in proper condition and repair, yet where the charter grants to the corporate authorities the power to "impose such taxes upon all the real and personal estate within the corporate limits of said city as they shall deem necessary for the support of the government of said city, or for other purposes, and *** enforce the collection of the same," and where these authorities have assumed and exercised corporate functions over the streets and bridges, and have negligently constructed or failed to keep in repair a bridge upon one of the public streets, whereby a traveler crossing the same sustains a personal injury, the corporation is liable to make compensation in damages, though no right of action be given by the charter or any statute. The right to redress for an injury occasioned by a defective structure erected and maintained by the corporation upon the public highway within the city is a right derived from the common law, and may be recognized and enforced under the circumstances of the present case.

2. Where one is tortiously disabled by a personal injury, and prevented from attending to his ordinary business for several weeks, he may be allowed nominal damages, at least, for his loss of time, although no definite evidence of the value of his time be submitted to the jury.

Error from superior court, Greene county; C. L. Bartlett, Judge.

Action by J. A. McGibbony against the city of Greensborough for personal injuries caused by a defective bridge on one of defendant's streets. There was a judgment for plaintiff and defendant brings error. Affirmed.

H. T Lewis, for plaintiff in error.

John C. Hart, for defendant in error.

LUMPKIN J.

1. The plaintiff below recovered damages from the city of Greensborough because of personal injuries sustained by reason of a defective bridge in one of its streets. The defendant contended that it was not liable, because there was nothing in its charter imposing any duty whatever upon the municipal corporation with reference to keeping its streets or highways in repair, and that in a case of this kind the city could not be held responsible, because it is not made so, either expressly or impliedly, by its charter, or by any general law. Under the facts disclosed by the record, we think the city was liable. We have carefully examined the act of March 5, 1856, incorporating the city of Greensborough (Acts 1855-56, p. 342). That act comfers upon the mayor and aldermen the power to remove all nuisances and obstructions in or upon the streets, and also "all the rights, powers and authorities that are now vested in the commissioners of the town of Greensboro." Accordingly, we took the pains to examine all the acts of the legislature, relating to Greensborough, passed before the act last mentioned. The act of December 16, 1815, provided "that the commissioners of the town, shall have the entire control over all the citizens and hands who actually reside within the limits of the corporation, that are liable to work on the roads, for the express purpose of keeping all the streets of said town in good repair." With the exceptions above indicated, we find nothing in any of the several acts relating to Greensborough, including also those amendatory of the act of 1856, conferring upon its municipal authorities any power, or imposing upon them any duty, with reference to the streets of the city. The mere power to remove nuisance and obstructions from the streets hardly imposes a plain and unequivocal general duty of keeping the streets in repair; and we do not think the provisions quoted from the act of 1815 conferred any power or imposed any duty upon the commissioners of Greensborough, in their corporate capacity, with reference to the streets. This provision amounted only to a modification of the state's system of working the public roads, so far as this town was concerned, by making the town commissioners road commissioners, in place of the road commissioners appointed in the usual manner. It cannot, therefore, be fairly said that the charter of Greensborough, in express terms, confers upon the municipal authorities the power, or imposes upon them any corresponding duty, of keeping the streets and bridges within the corporate limits in proper condition and repair. Inasmuch, however, as the charter does grant to the corporate authorities the power to "impose such taxes upon all the real and personal estate within the corporate limits of said city as they shall deem necessary for the support of the government of said city, or for other purposes, and *** [to] enforce the collection of the same," we do not think viewing this in connection with the other provisions of the charter, there was any undue assumption of authority by the mayor and aldermen in...