Lincoln County v. Gazzaway
| Decision Date | 15 May 1931 |
| Docket Number | 20918. |
| Citation | 158 S.E. 647,43 Ga.App. 358 |
| Parties | LINCOLN COUNTY v. GAZZAWAY. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Venue of action against county on account of claims against highway department is in county of highway on which damage occurred (Laws 1919, p. 248, art. 5, § 2, provision 5).
Act authorizing suit against county does not invalidate proceedings against county on claim against highway department as authorized by prior act (Laws 1919, p. 248 art. 5, § 2, provision 5; Laws 1925, p. 211, § 4).
Action for injuries from defective bridge under highway department's jurisdiction held properly brought against county, and highway department would be responsible for damages award against county on being vouched into court (Civ. Code 1910, § 748; Laws 1919, p. 248, art. 5, § 2 provision 5).
County must construct and maintain bridges in proper manner to be used safely by ordinary travelers (Civ. Code 1910, § 748).
Traveler though knowing there is some danger in driving over defective bridge, may recover for injuries, if exercising due care, unless danger was obvious (Civ. Code 1910, § 748).
That plaintiff was speeding over defective bridge would not preclude recovery against county; questions of negligence and proximate cause being for jury.
County authorities are not insurers of safety of county bridges, but need only exercise ordinary care in maintaining bridges.
Charge imposing on highway department burden equal to insurer to keep bridge in repair held reversible error.
Charge requiring county to exercise ordinary care in maintaining bridge, not inconsistent with previous erroneous instruction imposing duty of insurer, did not cure error.
Error from Superior Court, Lincoln County; C.J. Perryman, Judge.
Action by J. L. Gazzaway against Lincoln County. Judgment for plaintiff, and defendant brings error.
Reversed.
J. D. Kilpatrick, of Atlanta, J. B. & T. R. Burnside, of Thomson, and S. M. Mathews, of Ft. Valley, for plaintiff in error.
Clement E. Sutton, of Washington, Ga., for defendant in error.
Syllabus OPINION.
1. Under the provisions of the act for the reorganization of the state highway department, approved August 18, 1919 (Ga. Laws 1919, pp. 242, 248, 249, § 2, provision 5; Michie's Code 1926, § 828 (19), provision 5), when any portion of the state-aid road system is taken under the jurisdiction of the state highway department, the duty of the county to levy taxes for the construction and maintenance of any such road ceases, but the liability of the county for damages under existing law is continued, and it becomes the duty of the state highway department to defend any suit for damages brought against the county whenever the cause of action originates on a highway taken under the jurisdiction of the highway department, provided the highway department is vouched into court by the county, in the manner provided in the act; and, when the highway department is thus vouched into court, it becomes responsible for the damages awarded against the county. The provisions of this section of the act of 1919 operate to fix the situs of litigation on account of claims against the highway department, in suits against the county as defendant, for any cause for which a county is liable to suit under existing law, originating on a highway taken over by the highway department, in the county in which such highway is situated, and to provide a method by which service of any such suit against the county may be made upon the highway department so as to establish jurisdiction for the determination of such cause, as against the highway department, but proceeding against the county as defendant, in the courts of the county in which the highway upon which the cause of action originated is situated. The fact that by the terms of the act of 1925 (Ga. Laws 1925, pp. 208, 211, Michie's Code 1926, § 828 (4), the highway department is in general terms empowered to sue and made subject to suit generally does not operate to repeal or invalidate a proceeding of the particular nature and character authorized by the act of 1919, instituted in accordance with the particular method prescribed therein.
(a) Thus, where an injury was sustained by reason of the alleged defective condition of a bridge situated upon a state-aid road taken under the jurisdiction of the highway department, since the county would be liable to suit therefor under existing law (Civil Code of 1910, § 748), the action of the person injured was properly brought against the county as party defendant, and, when the state highway department was vouched into court, as provided by the act of 1919 cited above, it became responsible for any damages awarded against the county.
(b) Under the foregoing rulings, the court did not err in overruling the...
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