City of Rome v. Stone
| Decision Date | 12 January 1933 |
| Docket Number | 22162. |
| Citation | 167 S.E. 325,46 Ga.App. 259 |
| Parties | CITY OF ROME v. STONE. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Statute requiring notice to municipality before suit for injuries must be strictly construed against municipality (Civ. Code 1910, § 910).
Notice to municipality before suit for injuries need only inform municipality in general way of character of grievance, time place, and extent of injury (Civ. Code 1910, § 910).
Petition against city for injuries sustained in falling into ditch held not demurrable for failure of notice to municipality before suit to specify city's negligence (Civ. Code 1910, § 910).
Notice of claim four damages served on the city alleged that on or about November 17, 1930, at approximately 6 p. m., plaintiff fell into a ditch 18 inches deep and 30 yards in length which had been dug by the city between the paving on the sidewalk and the curbing of the street, in front of a designated residence, and as a result of falling into the hole plaintiff sustained injuries to her left leg, her back and spine, and that she had no knowledge of the ditch having been dug at such place, but that the ditch had been dug for a period of three days before she fell therein.
In suit against city for injuries sustained in falling into ditch between sidewalk and curb, charge that it was city's duty to keep its sidewalks in reasonably safe condition for travel thereon by pedestrians held proper.
Municipal authorities undertaking to repair street must take such precautionary measures for protection of persons having right to use thereof as ordinary care requires.
City has duty to keep its streets and sidewalks in reasonably safe condition for travel.
Regardless whether street where plaintiff fell into ditch was being repaired, defendant city had duty to take such precautionary measures for protection of persons having right to use thereof as ordinary care required.
Charge that injured pedestrian needed merely to prove alleged ditch existed between sidewalk and curb, and whether ditch was allowed to negligently exist long enough to charge city with knowledge thereof would be for jury, held not error.
Where city closes street to improve it, whether it has exercised ordinary care to provide adequate danger signals to warn unsuspecting travelers is jury question.
That repairs to street were being made by contractor to whom city let work held not to relieve city of liability for injuries sustained in stepping into ditch between sidewalk and curb.
Generally municipal corporation must keep its streets and sidewalks in safe condition for use by those having right to use them by night.
Municipality held chargeable with knowledge that person digging hole between sidewalk and curb under its authority failed to place barriers and lights about hole, without showing of notice, since acts of agent are acts of municipality.
City is not liable for injuries caused by defective condition of sidewalk due to failure to repair sidewalk or to negligent acts of third persons, absent actual or constructive notice of defective condition.
City is not liable under such circumstances, unless it has had actual notice of the defective condition, or unless it appears from the facts in the case that the defect could have been ascertained by the exercise of ordinary care, as where it has existed for such a length of time that notice will be implied.
In action against city for injuries sustained in falling into ditch, instruction on accident held properly refused.
Specific charge, adjusted to distinct matter in issue, involving plaintiff's right to recover, which may materially aid jury, should be given as requested, although in more general and abstract terms covered by other instructions given.
Error from Superior Court, Floyd County; James Maddox, Judge.
Suit by Mrs. H. B. Stone against the City of Rome. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.
Reversed.
Specific charge, adjusted to distinct matter in issue, involving plaintiff's right to recover, which may materially aid jury, should be given as requested, although in more general and abstract terms covered by other instructions given.
The following notice of a claim for damages was served upon the city of Rome:
The city did not pay the plaintiff's claim and thereafter she brought an action against the city for personal injuries to herself caused by the alleged negligence of the city in permitting, allowing, and directing the digging and leaving open of a ditch in front of her residence, between the sidewalk and curbing, without placing lights of some kind at or near the same to warn pedestrians of its existence, or in some manner safeguarding the same, where any pedestrian was likely at any time in the night to pass from her residence into the street. She alleged that she started from her home after dark for the purpose of going to the shopping district of the city, not knowing of the existence of such ditch, when she stepped into the same and injured her person. She set up that the city knew, or by the exercise of ordinary care could have known, of the existence of the ditch.
The defendant demurred to the petition, upon the ground that it set forth no cause of action, for the reason that the notice served on it did not specify any acts of negligence on its part, and that the plaintiff could not recover on the ground of negligence relied on in the petition, of which it had no notice. The court overruled the demurrer, and the defendant excepted pendente lite.
The city set up in its answer that the street on which plaintiff lived was in the course of repair and was closed to traffic, that an independent contractor was doing the work, and that any ditch that might have been dug and left open on said street was in connection with such repair work, but it denied the existence of such ditch. It further set up that the plaintiff was bound to have notice of the fact that such repair work was going on, and that plaintiff's injury was the result of her own negligence.
On the hearing the evidence was conflicting as to the material issues in the case. The jury returned a verdict for $500. The court overruled the defendant's motion for new trial, and to this judgment the defendant excepted.
H. L. Lanham and Wright & Covington, all of Rome, for plaintiff in error.
Porter & Mebane, of Rome, for defendant in error.
Syllabus OPINION.
1. The Civil Code 1910, § 910, provides that "no person, firm or corporation, having a claim for money damages against any municipal corporation of this State on account of injuries to person or property, shall bring any suit at law or equity against said municipal corporation for the same, without first presenting in writing such claim to the governing authority of said municipality for adjustment, stating the time, place, and extent of such injury, as near as practicable, and the negligence which caused the same."
(a) This statute is in derogation of the common law, and must be strictly construed as against the municipality. Maryon v Atlanta, 149 Ga. 35, 39, 99 S.E. 116. It does not contemplate that the notice shall be drawn with all the formalities and technical niceties of a petition. Its purpose was simply to give to the municipality notice that the citizen or property owner had a grievance against it. It is necessary only that the municipal corporation shall be put on notice of the general character of the grievance, and, in a general way, of the time, place, and extent of the injury. A substantial compliance with the statute is all that is required of a complainant. Langley v. City Council of Augusta, 118 Ga. 590 (11), 45 S.E. 486, 98 Am.St.Rep. 133; Mayor, etc., of Savannah v. Helmken,...
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