City of Rome v. Davis
| Decision Date | 25 February 1911 |
| Docket Number | 2,701. |
| Citation | 70 S.E. 594,9 Ga.App. 62 |
| Parties | CITY OF ROME v. DAVIS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where an excavation is made in a public street by permission, or at the command of the proper municipal authority charged with the supervision of the street, the duty of seeing that the excavation is properly safeguarded rests upon the municipality. In such a case it is not necessary to show that the city had notice of the condition of the street, because the work was to all intents and purposes done by the city itself, and the city is charged with knowledge of the exact condition.
Even though a permit be required to enable one to make excavations in the public streets of a city, and generally such a permit would be necessary as evidence that the work was authorized still the necessity of a permit is obviated, where the superintendent of public construction of a city, who by law has the supervision of all work upon the streets and the right to grant permits, either directs or expressly sanctions an excavation upon the street.
The court correctly instructed the jury, and the finding for the plaintiff was authorized. There is nothing in the record to indicate that the amount of the verdict was influenced by prejudice or bias on the part of the jury.
Error from City Court of Floyd County; Harper Hamilton, Judge.
Action by Odessa Davis against the City of Rome. Judgment for plaintiff, and defendant brings error. Affirmed.
Max Meyerhardt, for plaintiff in error.
Ennis & Shaw, for defendant in error.
This is an action for damages, brought by Odessa Davis against the city of Rome. The municipality complains of a judgment refusing a motion for a new trial. The jury returned a verdict in favor of the plaintiff for $500. The several attacks upon the petition which were suggested in the written argument cannot be considered, because it does not appear that there was any demurrer. The plaintiff proved her case as laid; and the defendant introduced no testimony. According to the testimony in behalf of the plaintiff, the young lady was riding in a buggy, accompanied by an escort, on her way to a place of amusement. It was after dark, and the middle of the street was obstructed by a large pile of stones, and at a certain place in the street they met another vehicle and were compelled to turn to the right of the road. As they did so the horse stepped into soft dirt, mired up, and fell on his head, throwing the young man out on one side of the buggy and the young lady on the other, and breaking the shafts of the buggy. In the fall the young lady received injuries, which were described to the jury by herself and two physicians. It turned out that the horse stepped into a round excavation which had been dug by street hands of the city of Rome near a pipe ditch and water main of the Rome Foundry & Machine Works. The excavation had been filled in with soft, damp dirt, just about two hours before the accident occurred. Though the hole had apparently become partially refilled when witnesses examined it shortly after the plaintiff was hurt and was then only about a foot deep, it is very naturally to be inferred that, after the leg of the horse was extricated from the hole, the soft dirt caved in and filled it until it was only about that depth.
Under this statement of the facts, the three questions which are presented by the record are: (1) Who is liable? (2) Did the judge err in charging upon the subject of notice, and in holding that, if the city permitted the excavation, the duty was upon the city of safeguarding passersby from danger? (3) Did the court err in charging that the ordinance of the city of Rome, requiring permits to be granted to any one wishing to make repairs in the streets, would not apply if the jury found that the superintendent of the board of public works gave direct orders for such changes, and required the changes to be made? The three questions may really be merged into one. It is admitted that the ditch was dug either by employés of the Foundry Company alone, or by such employés in conjunction with employés of the city, and the real question is: Was the city of Rome liable, even in the absence of a permit and of actual notice of the condition of the street?
The effect of the charge of the court was to tell the jury that if they believed that the excavation which injured Miss Davis was done by the permission of the superintendent of public construction of the city of Rome, the municipality was liable for the damages. We think that this charge was correct. It is true, as has often been ruled, that excavations cannot be lawfully made in a public street, except upon the permission of the municipal authorities. It is also a well-settled principle that a municipality cannot be held liable for any obstruction or excavation in its public streets until it has notice of the existence of the defect, or until the defect has existed for such a length of time that notice of its existence on the part of the municipal authorities can be presumed. In the instant case it appears that the General Assembly, by the act amendatory of the charter of the city of Rome, approved August 22, 1907 (Acts 1907, p. 897), created a board of public works, who were fully empowered to take entire charge and control of all street work, and this board created the office of superintendent of public construction, and conferred upon the occupant of that office the superintendence and entire charge of the streets and other public works. In pursuance of this act, the board of public works of Rome elected Mr. Worrell as superintendent, and there is undisputed testimony that Mr. Worrell not only asked Mr. Towers, as manager of the Rome Foundry & Machine Works, to make this excavation in connection with his water main, but that the tap hole and a...
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