Coffee County v. Denton

• Decision Date: 12 February 1941
• Docket Number: 28702.
• Citation: 13 S.E.2d 209,64 Ga.App. 368
• Parties: COFFEE COUNTY v. DENTON.
• Court: Georgia Court of Appeals

13 S.E.2d 209

64 Ga.App. 368

COFFEE COUNTY v. DENTON.

No. 28702.

Court of Appeals of Georgia, Division No. 1.

February 12, 1941

Mingledorff & Roberts, of Douglas, for plaintiff in error.

John S. Gibson and W. L. Wood, both of Douglas, for defendant in error.

BROYLES Chief Judge.

W. M Denton sued Coffee County for damages to his automobile. The petition as amended alleged that the damages occurred while the plaintiff was driving his car on a public bridge in said county; that the bridge extended over a "stream known as Dry Creek," and was built and maintained since 1888 by the county; that the bridge had upon it two uneven and unlevel "runners," and a large hole, about 20 inches square, and about 120 feet from the north end of the bridge and on the outside of the left or east runner; that the runners were perpendicular to the flooring of the bridge and ran in a parallel direction to the road over the bridge and were not of the same thickness and level on both sides, being irregular in size and level; that said hole had existed for over one year and was known to the county commissioner, or could have been so known by an inspection of the bridge or by the exercise of ordinary diligence; that on May 5, 1937, at about half past ten p. m., petitioner was in his Ford car and when he drove onto the bridge he was running about eight or ten miles an hour, and the rear wheels of his car failed to mount the runners; that he then slowed his speed to about five miles an hour and the rear wheels mounted the runners, but because of the runners being uneven and covered with mud and rain (it being a rainy night), the rear wheels skidded off the runners and the left rear wheel fell into the hole and the car was overturned and thrown from the bridge, its top being crushed in, its frame and fenders bent, and its glasses broken; and that plaintiff did not see the hole or the defective condition in the bridge as it was raining and the wetness of the bridge "made it look dark and black, blending it with the hole and defects in the bridge." The demurrers, general and special, to the amended petition were overruled. The case then proceeded to a verdict in favor of the plaintiff for "75 per cent. of the $235.90 sued for, without interest," the verdict being only for damages to the automobile. A motion for new trial was denied, and error was assigned on that judgment and on the rulings upon the demurrers.

1. The gist of the general demurrer was that the allegations of the amended petition, construed most strongly against the plaintiff, show that if the plaintiff suffered the damages sued for, such damages "were the result of his own negligence and carelessness and not the result of the negligence and carelessness of the defendant." In Hutchinson v. Greene County, 11 Ga.App. 103, 74 S.E. 853, the court said: "The court erred in awarding a nonsuit. The issue as to whether the plaintiff, in attempting to cross the bridge, was guilty of such contributory negligence as would amount to an assumption of the risk and defeat recovery, was one exclusively for determination by the jury, under the peculiar circumstances of the case. The existence and the degree of negligence, if any, is a question of fact." In Mitchell County v. Dixon, 20 Ga.App. 21, 92 S.E. 405, this court held that even if the plaintiff knew of the alleged defects in the bridge and that there was a degree of danger in attempting to cross it, he might nevertheless recover from the county for any injuries sustained unless it appeared "that the danger was so obvious that no ordinarily prudent and cautious man would venture on it or over it." It was further held in that case: "With knowledge of a defect in a public road one may continue to use it, but he is obliged to exercise reasonable care for his own safety in so doing; and what is reasonable care must depend upon all the facts and circumstances in the case. *** Actual knowledge of the condition of a public bridge is not conclusive evidence of contributory negligence, so as to bar a recovery by the person injured in consequence of its being out of repair, unless its condition is such that, under like circumstances, a person of ordinary prudence would not go upon it." See to the same effect Elbert County v. Threlkeld, 145 Ga. 133, 88 S.E. 683; Johnson County v. Scarboro, 59 Ga.App. 592, 1 S.E.2d 707. In our opinion the amended petition was not subject to the general demurrer. The cases cited in behalf of the plaintiff in error are not controlling in this case.

Paragraph 27 of the petition, in part, reads as follows: "Written notice was given said county within one year after the happening of said wreck, said notice stating the place where the accident occurred, the cause of said accident, and the amount of damages sustained by petitioner." The paragraph was specifically demurred to on the grounds that the written notice referred to therein was not incorporated in the paragraph or elsewhere in the petition, and that the allegations as to the notice were not sufficiently specific to fully apprise the county authorities of the nature, extent, and date of the demands, and how, to whom, and when, and in what form it was presented, and the amount of such demands, so that the county authorities would be able to properly defend the plaintiff's suit. Conceding that the notice referred to in the paragraph should have been set forth in more detail and should have been incorporated in the petition or attached as an exhibit thereto, we think that under all the facts of the case the overruling of the special demurrer was not harmful error. The petition had alleged that James B. Jardine was the commissioner of roads and revenues of the county, that the affairs of the county generally were under his control, and, specifically, that the roads and bridges were maintained and repaired under his direction and supervision. On the trial the following notice signed by the plaintiff was introduced in evidence: "June 5, 1937. Mr. James B. Jardine, Chairman Coffee County Commissioners, Douglas, Ga. Dear Sir: Being your regular monthly meeting will be Monday June 7, I thought it best that...