Davis v. City Of Rome, (No. 17987.)

• Decision Date: 28 February 1928
• Docket Number: (No. 17987.)
• Citation: 142 S.E. 171,37 Ga.App. 762
• Parties: DAVIS. v. CITY OF ROME.
• Court: Georgia Court of Appeals

37 Ga.App. 762

142 S.E. 171

DAVIS.

v.CITY OF ROME.

(No. 17987.)

Court of Appeals of Georgia, Division No. 2.

Feb. 28, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Floyd County; James Maddox, Judge.

Action by Mary Davis against the City of Rome. Judgment for defendant, and plaintiff brings error. Reversed.

Harris & Harris, of Rome, for plaintiff in error.

Paul H. Doyal, of Rome, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1, 2] 1. Where in a city street there is a strip of land about 5 feet in width, separated from that part of the street which is used for vehicular traffic by a small ditch used to convey surface water, and which is between the ditch and a private abutting lot, which strip of land is, with knowledge on the part of the city, used by pedestrians as a pathway, the strip of land, being a part of a public street of the city, is necessarily dedicated to public use as a pathway for pedestrians; and, irrespective of whether the pathway can properly be designated as a "sidewalk" which the city is under a duty to keep in repair and render safe for travel thereon by pedestrians, the city is nevertheless under a duty, when creating or maintaining any condition in the pathway, to exercise, in so doing, due care for the safety of pedestrians using the pathway.

2. The maintenance by the city, upon that part of such a sidewalk or pathway which is used by pedestrians in traveling over the sidewalk or pathway, of a meter box, as a part of the city's water works system, in such a condition that the top of the meter box, because of the height of the meter, will not rest down securely upon the rim of the box, and, because of such insecure condition of the top of the meter box, the top does not stay in position but is continually knocked off by passing pedestrians, thus leaving the meter box open and exposed, and leaving an unprotected opening in the sidewalk which is about 8 inches wide, about 20 inches long, and about 15 inches deep, which condition in the construction of the meter box has been in existence for several years, will authorize an inference that, as against a pedestrian traveling along the sidewalk or pathway, the city knew of this condition of the sidewalk or pathway and was negligent in maintaining the sidewalk or pathway in such condition. A pedestrian who, without fault, steps into the opening and is injured as a result of the city's negligence in maintaining such condition may recover for injuries...