Davis v. City of Toccoa, 35805
| Decision Date | 01 December 1955 |
| Docket Number | No. 2,No. 35805,35805,2 |
| Citation | 93 Ga.App. 155,91 S.E.2d 89 |
| Parties | Clay DAVIS v. CITY OF TOCCOA et al |
| Court | Georgia Court of Appeals |
Clay Davis brought an action for damages against the City of Toccoa, Georgia, and Colonial Stores, incorporated for the death of his wife. The material allegations of the petition an amended are substantially as follows. (2) The plaintiff is the surviving husband of Mrs. Byrt Craig Davis. There are no surviving children of their marriage. (3) The plaintiff's wife was wrongfully killed on September 24, 1953 in the City of Toccoa by the negligence of the defendants and their agents and servants. (4) On that date Colonial, by and through its agents and servants, illegally and negligently obsturcted a street in the rear of its store in Toccoa with a large truck and trailer so as to prevent the passage of traffic along the street. (5) A vehicle owned by the city and operated by its agent and servant was attempting to pass along the street which was thus obstructed and blocked by Colonial. Upon reaching the illegal and negligent blockade, the servant driving the city's vehicle was forced to attempt to avoid the blockade by changing the direction of movement of the city's vehicle and in so doing, he ran over and killed the plaintiff's wife who was a pedestrian at the time. (6) Had it not been for the illegal and negligent blockade maintained across the street by Colonial, the city's vehicle would have continued its course along the street and the injury to the plaintiff's wife which resulted in her death would not have occurred. (7) On September 24, 1953, and prior thereto, it had been the custom and habit of Colonial to obstruct and blockade the street for several hours at a time while unloading merchandise for its store from its trailertrucks. (8) The city knew, or should have known, or had ample opportunity to know of the unauthorized and illegal obstruction of this street by Colonial. (9) The city knew, or should have known, or had ample opportunity to know, the customary illegal and unauthorized obstruction would and did impair the use of the street in an unreasonable manner for an unreasonable length of time which prevented the passage of traffic and endangered the person and property of persons using the street, including the plaintiff's wife. (10) Colonial was negligent in blocking and obstructing the street so as to prevent the passage of the city's vehicle as well as the passage of other vehicles, which created a dangerous habitual nuisance. (11) The city was negligent in knowingly and carelessly permitting one of its streets to be habitually obstructed by Colonial's trailer-trucks in such a manner that its own vehicle as well as other vehicles could not pass along the street. By knowingly and carelessly permitting such habitual obstruction of the street, the city permitted and condoned the maintenance of an habitual and dangerous nuisance in its street. (12) The acts of negligence related in paragraphs 10 and 11 contributed directly and concurrently in causing the wrongful death of the plaintiff's wife. (13) The plaintiff's wife was at the time in the exercise of ordinary care and could not have prevented 'the accident' resulting in her wrongful death. (14) The plaintiff's wife had been his faithful, dutiful, and devoted companion for 32 years and the full value of her life is not less than $50,000. (15) Notice of his claim, as required by Code Ann.Supp. § 69-308, has been given the governing authority of the city 30 days prior to the filing of this petition and the plaintiff has had no response from the city. (16) The street on which the plaintiff's wife was killed was a public street of alley in the city, running parallel to Doyle Street, and was used constantly by the public for ingress and egress to and from the houses and places of business abutting on the said street or alley. The plaintiff's home faces Doyle Street and extends in the rear to the street or alley in which his wife was killed. The alley is approximately 20 feet wide and extends the length of the block from Pond Street to North Hill Street. (17) On the day the plaintiff's wife was killed Colonial stopped and parked its large trailer-truck in the alley at the rear of its store in such a way that less than three feet of the width of the street or alley was left free for the movement of other vehicular traffic and thus completely monopolized and obstructed the use of the alley and prevented the passage of other vehicular traffic. This illegal obstructing and blocking of the alley began around noon on the day the plaintiff's wife was killed and continued for three hours or longer until the plaintiff's wife was killed about 4:30...
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