Lundy v. City Council Of Augusta, 24558.

• Decision Date: 17 August 1935
• Docket Number: No. 24558.,24558.
• Citation: 51 Ga.App. 655,181 S.E. 237
• Parties: LUNDY. v. CITY COUNCIL OF AUGUSTA.
• Court: Georgia Court of Appeals

51 Ga.App. 655

181 S.E. 237

LUNDY.

v.CITY COUNCIL OF AUGUSTA.

No. 24558.

Court of Appeals of Georgia, Division No. 2.

Aug. 17, 1935.

Syllabus by the Court.

1. Under the averments of the petition, the city was not liable for fatal injuries sustained by a guest in an automobile, from its striking against a curb and overturning at an intersection where the street on which the car was moving entered at right angles another street without extending beyond, upon the theory that, the intersection being dangerous at night to motorists, the city was negligent in its failure to place and maintain a sign, marking, device, signal, or other warning that one street thus ended without continuing beyond.

2. The petition was not subject to general demurrer however, under the averments that the city was negligent in allowing a quantity of sand to accumulate at the intersection, by reason of which the automobile skidded and slid into the curb when its driver attempted to turn at the intersection.

3. While the alleged negligence of the city in failing to light the street intersection sufficiently to show the conditions stated constituted in and of itself no cause of action, these allegations were material in the determination of questions of fact as to whether the city was negligent with regard to the accumulation of sand at the intersection, and whether this alleged negligence or negligence by the driver of the car was the proximate cause of the injury, even though mere contributory negligence by the driver, not being imputable to the guest, would not prevent a recovery unless it was the proximate cause of the injury.

4. The statutory notice given to the municipality before suit was sufficient to support the averments as to insufficient lighting of the street intersection, which, although showing no cause of action in themselves, were material to the extent held above. Whether such notice was sufficient to authorize the averments of negligence as to the accumulation of sand, not being questioned by the demurrer, but only by brief, need not be determined.

5. The petition in its entirety not being subject to dismissal on general demurrer andbeing subject only to the grounds of special demurrer stated in the opinion, as to which the plaintiff was given no opportunity to amend, the dismissal of the petition upon all of the grounds was error.

• Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Petition by D. W. Lundy against the City Council of Augusta. To review a judgment dismissing the petition on demurrers, plaintiff brings error.

Reversed.

Clement E. Dunbar, of Augusta, for plaintiff in error.

Wm. T. Gary, of Augusta, for defendant in error.

JENKINS, Presiding Judge.

1. While it is the duty of a city "to keep its streets and sidewalks in a safe condition for travel in the ordinary modes, by night, as well as by day, and if it fail to do so, it is liable for damages for injuries sustained in consequence of such failure" (City of Atlanta v. Perdue, 53 Ga. 607, 608; Butler v. City of Atlanta, 47 Ga. App. 341, 343, 170 S. E. 539), the laying out and construction of city streets is a governmental function, and a city will not be liable for an injury, upon the theory merely that it had constructed and was maintaining a dangerous intersection, at a place where one street entered at right angles without extending beyond another street, and that the city was negligent in merely failing to place a sign, marking, device, signal, or warning to automobiles, approaching the intersection at night along the former street, that the street thus ended after entering the other street, even though it be further alleged that "there is an opening or open roadway or entrance-way between the houses there situated * * * which would indicate to and convince any one driving in darkness * * * that at said point said [street] did not terminate, but continued on beyond." There being no allegation that the city had anything to do with the construction or maintenance of such roadway between the houses, the averments with regard to the intersection and warning to motorists at night show no act by the city, beyond the exercise of its proper governmental functions, in constructing the two streets, and show no such dangerous con dition as would create a duty upon its part to erect and maintain a sign or signal at night at the intersection, to warn auto-mobilists, proceeding with proper lights, speed, and ordinary care, that one street, after entering the other, did not continue beyond. See Mayor, etc., of Savannah v. Jones, 149 Ga. 139, 141, 142, 99 S. E. 294; Town of Poulan v. Atlantic Coast L. R. Co., 123 Ga. 605 (5, 6), 610, 611, 51 S. E. 657; McQuillin on Municipal Corporations, vol. 1, p. 965, § 390, vol. 3, p. 194, § 981.

2, 3. "In the absence of any statutory requirement, a municipal corporation is not under any obligation to light its streets with lamps, and from the exercise of its discretion in regard to whether it will do so or not no liability will arise. But if a municipality obstructs a street or allows it to remain obstructed, or out of repair, or in a dangerous condition, the fact of the absence of lights or safeguards of any character at the place or that a street light established at that point has been allowed to remain unlit for a number of nights before an injury occurs to a pedestrian may be considered, along with the other evidence, in determining whether there is negligence in failing to keep the street in a reasonably safe condition." "If the city performs its duty with reference to keeping its streets in reasonably safe condition, the mere absence of an ordinary street light at a given point will not constitute such negligence as to render the city liable. But if the question is whether a city has performed its duty in regard to keeping a street in a reasonably safe condition, or whether it has been negligent in that regard, and in respect to failing to erect proper safeguards or to placing proper lights at a dangerous place where an injury occurs, the character of the light at that...