City of Rome v. Brinkley

• Decision Date: 19 October 1936
• Docket Number: 25684.
• Citation: 187 S.E. 911,54 Ga.App. 391
• Parties: CITY OF ROME v. BRINKLEY.
• Court: Georgia Court of Appeals

187 S.E. 911

54 Ga.App. 391

CITY OF ROME v. BRINKLEY.

No. 25684.

Court of Appeals of Georgia, Second Division

October 19, 1936

Syllabus by the Court.

1. A municipality is bound to keep and maintain its sidewalks in a reasonably safe condition for travel, by night as well as by day, and is responsible if it fails to exercise ordinary care to accomplish the same, where it knew or should have known that the sidewalk was in an unsafe condition; and where in such circumstances the defect in the sidewalk has existed for such a length of time that the city in the exercise of ordinary diligence ought to have discovered and remedied it actual notice is unnecessary.

2. Whether a defect or obstruction in a sidewalk was such as to give a right of action to a person injured thereby is ordinarily a question for a jury, since it is a complicated question of fact, involving the height of the obstruction its appearance to pedestrians, and the peril which might have been anticipated by the city by the exercise of reasonable forethought.

3. An irregularity or break in a sidewalk, along a main public street in a city, "one joint of said sidewalk standing approximately six inches above the level of the joint below the same, and causing an obstruction in said sidewalk of approximately six inches," was, under the facts of this case as to the plaintiff, traveling on the sidewalk at night where the street light was too far away to afford any illumination of the sidewalk at the point, and there being trees overhanging the sidewalk further darkening the place sufficient for the jury to find that it was a dangerous defect or obstruction, and that the city would be liable in a proper case to one injured thereby, while in the exercise of proper care for his own safety.

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

Action by Mattie Brinkley against the City of Rome. To review a judgment overruling the defendant's general demurrer, the defendant brings error.

Affirmed.

W. B. Mebane, of Rome, for plaintiff in error.

Wright & Covington, of Rome, for defendant in error.

SUTTON, Judge (after stating the foregoing facts).

While "municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers," they are liable "for neglect to perform, or for improper or unskilful performance of their ministerial duties." Code, § 69-301. "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 actual notice thereof, or such defect has existed for a sufficient length of time for notice to be inferred." Code, § 69-303. The petition in this case does not allege that the city was negligent in the construction of said sidewalk, but that it had notice and knowledge of the existence of a defect therein (six-inch break of unevenness) by reason of its being in a sidewalk that paralleled one of the main public streets in the city, patrolled by its officers, and having existed therein for more than two years. See Rome v. Stone, 46 Ga.App. 259, 167 S.E. 325. The general rule of law is that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by night as well as by day; and if it fails to do so it is liable in damages for injuries sustained in consequence. Brown v. Mayor, etc., of Milledgeville, 20 Ga.App. 392, 93 S.E. 25; Herrington v. Macon, 125 Ga. 58, 54 S.E. 71; Silvertown v. Harcourt, 51 Ga.App. 160, 179 S.E. 772; Atlanta v. Hampton, 139 Ga. 389, 77 S.E. 393; City of Columbus v. Anglin, 120 Ga. 785, 48 S.E. 318; Butler v. Atlanta, 47 Ga.App. 341, 343, 170 S.E. 539; Atlanta v Robertson, 36 Ga.App. 66, 135 S.E. 445; Jolly v. Atlanta, 37 Ga.App. 666, 141 S.E. 223; Waycross v. Howard, 42 Ga.App. 635, 157 S.E. 247; Ellis v. Southern Grocery Stores, 46 Ga.App. 254, 167 S.E. 324. And where the city knows or ought to know of a defect, in time to repair or give warning of it, it is liable for injuries sustained because of the defect regardless of its cause. McFarland v. McCaysville, 39 Ga.App. 739, 148 S.E. 421, and citations supra. The city will be liable no matter by what cause the sidewalk may have become defective and unsafe, where it knew or should have known of the defect in time to have repaired it. Atlanta v. Robertson, supra. And what would be "in time" is ordinarily a question for the jury under the facts. If a city has notice of a dangerous defect in a sidewalk, it is its duty to exercise ordinary care...