Georgia Ry. & Electric Co. v. Tompkins

Decision Date19 August 1912
Citation75 S.E. 664,138 Ga. 596
PartiesGEORGIA RY. & ELECTRIC CO. v. TOMPKINS.
CourtGeorgia Supreme Court

Syllabus by the Court.

Where a street railway company, which owned land abutting on a public highway outside of the limits of a municipal corporation, for its own benefit and without permission from the proper authorities, as required by the statutes, and in violation thereof (Pen. Code 1910, §§ 543-545), dug up the highway and placed a catch-basin in it on the edge of the sidewalk, with a pipe leading therefrom across the street under the surface to another catch-basin, and then refilled the ditch, this was unlawful; and if a person legitimately passing over the catch-basin after its construction stepped in a hole in its covering and was injured, the railway company was liable for such injury, without the necessity for showing that the top of the catch-basin was negligently constructed, or that the company was negligent in causing or permitting a hole to exist therein, it not appearing that the injured person was wanting in ordinary care.

An owner of property abutting upon a street or highway is not because of such ownership, liable for defects in such street or highway. But this rule does not relieve the owner of abutting property from liability, if he unlawfully places in the highway a structure which later gets in bad repair and causes injury to a passer.

Suit for a personal injury caused by stepping into a hole in the top of such a catch-basin was not barred by the statute of limitations, because the basin was originally constructed four years before the suit was brought, where the person injured sued within less than two years from the time when the injury occurred.

(a) The statute of limitations applicable to the prosecution of a person who wrongfully obstructs or interferes with a highway has no application to a suit by one who suffers a personal injury by reason of the existence of a catch-basin so unlawfully built.

The evidence was not such as to require a reversal, under the contention that the verdict was unauthorized, because the evidence showed that the county authorities had assumed jurisdiction over the structure in question and had relieved the defendant from any duty in regard to it.

When the limits of the municipal corporation were extended, so as to include a part of a highway which had previously been beyond the limits, such part of the highway then became one of the public streets of the city, and the municipality became liable for failure to keep it in proper repair, as it would be for failure to repair its other streets.

(a) But, whether or not the municipality was liable on account of an injury occurring there, this did not operate to release from liability one who unlawfully placed in the highway before it became a street a catch-basin which caused a personal injury to a passer.

Allegations and proof as to the ownership by the defendant of abutting property, the situation of its tracks and station for passengers at that point, the digging of a ditch across the street, and the laying of a pipe connecting this with another catch-basin were competent, as showing the situation and surroundings, and that the defendant built the catch-basin for its own benefit.

Evidence on the part of the city engineer that the construction of sewers came within the control of the engineering department of the city, and that such department had never had anything to do with the catch-basin in question, was admissible as tending to show that the city had never assumed or exercised control over such basin as a part of its drainage system.

(a) So likewise, evidence of the chief of the sanitary department was admissible to show that such department cleaned the catch-basins in the city, and that they had never cleaned out the one in question. If his other evidence as to the practice in cleaning catch-basins rendered the admissibility of this doubtful, its admission would not require a reversal.

In a suit for a personal injury, where the nature and extent of the injury, and the character of the treatment administered the services rendered by physicians, and the amount paid therefor were fully proved, a charge to the effect that the plaintiff, if entitled to recover would be entitled to recover such reasonable amount of physician's bills and necessary expenses incurred in consequence of the injury as might have been proved to the satisfaction of the jury, was not without evidence to support it, although no witness expressed the opinion that the charges were reasonable.

Where there were two counts in the petition, and the verdict was in favor of the plaintiff, without stating on which count it was based, if this furnished any ground for objection to the verdict when returned, it was no cause for a new trial, in the absence of any such objection.

None of the other assignments of error require a reversal.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by H. C. Tompkins against the Georgia Railway & Electric Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Colquitt & Conyers, of Atlanta, for plaintiff in error.

Jas. L Key, of Atlanta, for defendant in error.

LUMPKIN J.

The Georgia Railway & Electric Company, without permission from the county authorities, constructed a catch-basin on the edge of a highway near the city of Atlanta, with a pipe running under the street to another catch-basin, and thence connecting with a drain. Afterwards the limits of Atlanta were extended, so that the highway at this point and the catch-basin were taken into the city. About four years after its construction, the plaintiff, while going to board a street car at night, stepped upon the covering of the catch-basin. At that time there was a hole in such covering, into which he stepped and was injured. He recovered a verdict, and after the refusal of a new trial the defendant excepted.

1. The digging up of the public highway and placing the catch-basin there, with its connecting pipe, without permission of the proper authorities, was unlawful. Pen. Code, §§ 543, 544, 545. The defendant, having placed the basin on the edge of the street or sidewalk to protect its own property from surface water, was liable for damages resulting therefrom. If it been placed there by permission of the proper authorities, the question of liability for injury would have depended on diligence or negligence in the manner of the construction or maintenance, if there were a duty to maintain. But if one unlawfully places such an obstruction or excavation in a public highway, he is not relieved from liability resulting therefrom by setting up that he exercised diligence in the manner of the creation and maintenance thereof. 15 Am. & Eng. Enc. Law (2d Ed.) 433; 2 Dillon, Mun. Corp. (5th Ed.) § 1725; Congreve v. Morgan, 18 N.Y. 84, 72 Am.Dec. 495; 2 Elliott on Roads & Streets (3d Ed.) §§ 899, 902; Joyce on Nuisances, § 230. Note, also, the language of Penal Code, § 543, as to damages. The evidence did not require a finding that there was any want of ordinary care on the part of the person injured.

2. An owner of property abutting upon a street or highway is not, by virtue of being such owner, liable for defects in the street or highway. But this rule has no application where the owner of abutting property creates a defect in a street or highway or a nuisance therein. In the latter event he is liable, not because he owns the abutting property, but because he creates or maintains the thing from which injury results.

3. It was contended that if the placing of the catch-basin at that point was without authority when it was constructed, about four years had elapsed from that time until the suit was brought, that the defendant was not shown to have taken any further...

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