City of Rome v. Hanson

• Decision Date: 24 September 1938
• Docket Number: 27013.
• Citation: 199 S.E. 329,58 Ga.App. 617
• Parties: CITY OF ROME v. HANSON.
• Court: Georgia Court of Appeals

199 S.E. 329

58 Ga.App. 617

CITY OF ROME v. HANSON.

No. 27013.

Court of Appeals of Georgia, First Division

September 24, 1938

Rehearing Denied Nov. 3, 1938.

Syllabus by the Court.

1. Question of whether or not city in the exercise of ordinary care in performing its duty of keeping its streets and sidewalks in a reasonably safe condition should have discovered a hole existing in "a grass-covered parkway approximately five feet in width," which parkway was situated between the paved sidewalk and the street, and removed the same, held, to be for determination by the jury under the facts of the present case.

2. Plaintiff held not to be barred from recovery as a matter of law because of previous remote knowledge of existence of the hole in question.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Action by Sophronia Hanson against the City of Rome for injuries received when the plaintiff stepped into a hole in grass-covered parkway between sidewalk and street. Judgment for plaintiff, and defendant brings error.

Affirmed.

Lanham & Parker, of Rome, for plaintiff in error.

Maddox & Griffin, of Rome, for defendant in error.

GUERRY Judge.

1. "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. See, also, City of Barnesville v. Sappington, 58 Ga.App. ---, 197 S.E. 342. While it is true that as to defects in or obstructions on a public street not created in or placed thereon by any of its agents or servants, the city is liable to one sustaining injury by reason thereof only "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" (City of Barnesville v. Sappington, supra, 197 S.E. 343), and therefore that a city would not be liable for the existence of a latent defect not discoverable by the exercise of ordinary care, however, it is the well-established general rule that whether the defect was such as the municipality should have discovered the same in the exercise of ordinary care in keeping the streets and sidewalks in a reasonably safe condition is a question for the jury. City of Barnesville v Sappington, supra and cit.

In the present case, the defect consisted of a hole (post hole) in "a grass-covered parkway approximately five feet in width," situated between the paved sidewalk and the street. The evidence clearly shows that the defect had existed for at least three years before the injury to the plaintiff. The defendant takes the position that it is shown that the hole was covered with grass, and therefore that it was a latent defect which it could not have discovered by the exercise of ordinary care. It may be true that at the time of the injury the hole was not visible upon ordinary inspection. However, it does not appear...