City Of Macon v. Jones, (No. 17718.)

• Decision Date: 12 May 1927
• Docket Number: (No. 17718.)
• Citation: 138 S.E. 283,36 Ga.App. 799
• Parties: CITY OF MACON. v. JONES.
• Court: Georgia Court of Appeals

36 Ga.App. 799

138 S.E. 283

CITY OF MACON.

v.JONES.

(No. 17718.)

Court of Appeals of Georgia,

Division No. 2.

May 12, 1927.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Action by A. R. Jones against the City of Macon. Judgment for defendant, plaintiff's certiorari was sustained by superior court, and defendant brings error. Affirmed.

Harry S. Strozier, of Macon, for plaintiff in error.

Jesse Harris, of Macon, for defendant in error.

BELL, J. A. R. Jones sued the city of Macon for damage to his automobile, alleged to have been caused by the negligence of the city in failing to keep its streets in reasonably safe condition. The city demurred generally on the ground that the petition showed that the driver of the automobile was not in the exercise or ordinary care at the time, and by the exercise of such care could have avoided the damage. The municipal court, in which the suit was brought, sustained the demurrer, a certiorari was sustained by the superior court, and the city excepted. The sole question for determination by this court is whether, as a matter of law, Jones, through the driver of the automobile, was guilty of such negligence as would preclude a recovery.

The petition alleged, among other things, that on the night of February 3, 1926, the plaintiff's son, who was about 21 years of age, was driving the automobile along Fifth avenue, a public street of the city, when "the said son of plaintiff, in the exercise of ordi nary care and diligence, struck an iron manhole situated in the center of said street, causing damage to your petitioner's machine in the following manner: Destroying transmission housing, pocket shaft, universal joint, and counter sliding, rendering the said automobile useless until the same was repaired, " to the plaintiff's damage in a sum stated. Plaintiff's "said son was driving the said vehicle along said Fifth avenue in the nighttime and struck said manhole, which extended about 12 inches above the level of the street, said manhole being unlighted, without barrier to warn or protect pedestrians or vehicles along said street, and which said manhole extended as high as 12 inches above the level of the street, the existence of which said manhole was unknown to the son of the petitioner, and the damage occurring to petitioner's automobile was caused on account of the negligence of the city of Macon." The petition further alleged that the plaintiffs son was "free from fault, he having no knowledge of the faulty condition of said street"; and in one place in the petition the manhole is referred to as extending "over 12 inches above the level of the street."

In sustaining the certiorari the trial judge said:

"It may or may not be gross negligence as a matter of fact to drive an automobile over an obstruction extending 12 inches above the street curb. It cannot be said as a matter of law that such an act would be grossly negligent or that it would, necessarily be ordinary negligence. No one who was in the exercise of ordinary diligence would attempt to drive over an obstruction that was manifestly too high for the machine to clear. And yet there are obstructions some several inches high over which automobiles do drive in perfect safety. To say that it is not negligent to drive over a 6-inch obstruction, but that it is negligence as a matter of law if the obstruction is 11¹/₂ or 11% or 11¹⁵/₁₆ inches high is reducing to scientific exactness a question of fact which the law intended should be decided by 12 men after they have been made familiar with all the circumstances.

"When the evidence is examined it may appear that the attempt to drive over this particular obstruction at that particular time by the driver then in charge of the machine was rash and grossly negligent, and that the exercise of ordinary diligence would have avoided the injury. On the other hand, it might be shown that if the obstruction had been three-eighths of an inch lower this particular machine would have cleared it, and that the driver misjudged the height of the obstruction by less than half an inch. Of course a mistake of judgment as to the height of the obstruction could not as a matter of law charge plaintiff with negligence, if under the circumstances a prudent man could reasonably think the machine would clear the obstruction."

Unless the plaintiff's action could be classed as rash or reckless, it is a question for thejury whether under the circumstances he was guilty of negligence amounting to a want of ordinary care. So long as the want of such care on the part of the driver in attempting to pass over the projecting manhole, under all the facts and circumstances then existing, is a question about which reasonable minds might differ, it is a question for the jury, and should not be set up as a bar in law against a recovery. Mitchell County v. Dixon, 20 Ga. App. 21 (5), 32, 92 S. E. 405. In Samples v. City of Atlanta, 95 Ga. 110, 22 S. E. 135, on page 113 (22 S. E. 136), the Supreme Court said:

"There is greater or less danger attending the use of many public bridges and highways. Sometimes the danger is very slight indeed—so slight as to be of but little consequence. Again, the danger is somewhat greater, and more carefully to be guarded against by one who takes the proper care for his own safety; and still again, the danger may be so very great and apparent that the only proper way to shun it would be to avoid altogether coming within its reach. Between the extremes there is every conceivable degree and kind of danger. Where the danger is exceedingly small and trivial, it may not be at all negligent to disregard it; where it is exceedingly great and obvious, it would be negligence per se to incur the hazard of being injured by it. In other cases it would be open to question whether incurring such possible or probable hazard would be consistent with ordinary care; and in cases of this kind the question of contributory negligence is one for determination by the jury."

A case having some analogy to the present case, and decided by the Supreme Court of the United States in the light of the principles here...