City Of Silvertown v. Har-court

• Decision Date: 22 April 1935
• Docket Number: No. 24343.,24343.
• Citation: 179 S.E. 772,51 Ga.App. 160
• Parties: CITY OF SILVERTOWN et al. v. HAR-COURT.
• Court: Georgia Court of Appeals

51 Ga.App. 160

179 S.E. 772

CITY OF SILVERTOWN et al.

v.HAR-COURT.

No. 24343.

Court of Appeals of Georgia, Division No. 2.

April 22, 1935.

Syllabus by Editorial Staff.

STEPHENS, J., dissenting.

Error from Superior Court, Upson County; W. E. H. Searcy, Jr., Judge.

Petition by Mrs. Maurice Harcourt against the City of Silvertown and another. To review a judgment overruling a general demurrer to the petition, defendants bring error.

Reversed.

This is a suit against a municipal corporation for damages on account of injuries sustained by the plaintiff in a fall, occasioned by her attempt to cross over a strip of slick and muddy paved sidewalk about 4 to 6 feet wide, where rains had caused mud, sediment, and sand to flow from the abutting embankment. The petition shows that this condition had continued for about thirty days prior to the accident, and that the alleged defect existed on the route which she "always took to her work when she left her home"; that at the time of the accident she decided to cross over the muddy section of the sidewalk rather than step out in the street, for the reason that the adjoining street was unpaved, and being muddy with water thereon, was equally dangerous; and that she crossed over the defective sidewalk instead of selecting some other route because she was late or would become late to her work. The defendant excepts to the overruling of its general demurrer.

Jas. R. Davis, of Thomaston, for plaintiffs in error.

Geo. H. Miller, of Thomaston, for defendant in error.Syllabus Opinion by the Court.

JENKINS, Presiding 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.

2. Knowledge on the part of a city of a defect in one of its sidewalks will be presumed where the defect has continued for such a length of time that, by reasonable diligence in the performance of their duties, its existence ought to have become known to the proper authorities.

3. The mere fact that one using a street or sidewalk may have knowledge of the existence of some defect or obstruction does not always and as a matter of law constitute such contributory negligence as will in and of itself preclude a recovery, if, in view of such knowledge, the injured person exercised reasonable and ordinary care under the circumstances. This is true for several reasons:

(a) A traveler may know of the existence of the defect, yet his knowledge may be slight, remote, imperfect, or insufficient to give a full appreciation of the danger, as where he knew of the generally defective condition of the street or sidewalk, but had no knowledge of the particular defect which caused the injury; and the law does not charge him with such detailed and elaborate knowledge, since ordinary diligence on the part of a person using a street or sidewalk, and ordinary diligence on the part of the city in constructing and keeping it in repair, do not imply a like degree of vigilance in foreseeing danger and guarding against it. Samples v. City of Atlanta, 95 Ga. 110, 22 S. E. 135; Idlett v. City of Atlanta, 123 Ga. 821 (3), 51 S. E. 709; Heath v. Louisville & Nashville R. Co., 39 Ga. App. 619, 147 S. E. 793; City Council of Augusta v. Brassell, 48 Ga. App. 603 (6), 173 S. E. 440. (b) Or the traveler may have at some previous time observed the defect, and yet the circumstances might be such as would excuse his temporary forgetfulness in not remembering and looking out for it. Dempsey v. City of Rome, 94 Ga. 420, 20 S. E. 335. (c) Or the traveler, although having knowledge of the existence of a defect, may be unaware of the particular latent and concealed dangerous condition connected therewith which occasioned the injury. Kent v. So. Bell Telephone Co., 120 Ga. 980, 48 S. E. 399. (d) Or the traveler may be confronted with some sudden emergency with no time for delibera tion or the exercise of his full judgment, as for example, where one falls into a dangerous ditch or strikes an obstruction after leaping from a vehicle in order to avoid imminent peril, or where in a sudden emergency he crosses a defect in a street in order to avoid a collision; but this rule does not arise in favor of one who knowingly creates an emergency by voluntarily putting himself into the dangerous...