Mayor And Aldermen Of City Of Savannah v. Jones

• Decision Date: 15 May 1919
• Docket Number: (No. 1104.)
• Citation: Mayor And Aldermen Of City Of Savannah v. Jones, 149 Ga. 139, 99 S.E. 294 (Ga. 1919)
• Parties: MAYOR AND ALDERMEN OF CITY OF SAVANNAH v. JONES.
• Court: Georgia Supreme Court

149 Ga. 139

99 S.E. 294

MAYOR AND ALDERMEN OF CITY OF SAVANNAH

v.JONES.

(No. 1104.)

Supreme Court of Georgia.

May 15, 1919.

(Syllabus by the Court.)

Certified Questions from Court of Appeals.

Action by H. B. Jones against the Mayor and Aldermen of Savannah. Questions certified from Court of Appeals. Questions answered in the affirmative.

Robt. J. Travis and David S. Atkinson, both of Savannah, for plaintiff in error.

W. R. Hewlett and N. J. Norman, both of Savannah, for defendant in error.

HILL, J. The Court of Appeals has certified the following to this court for instruction:

"Henry B. Jones brought suit against the mayor and aldermen of the city of Savannah, and in part alleged as follows:

" '(3) That what is known as and commonly called the "City Market" sits in the intersection of the Barnard and St. Julian streets, in the city of Savannah, said Chatham county, Ga., and on the east side of said market, facing St. Julian street, and running north and south on the outer edge of the sidewalk is a railing some 10 or 12 feet long, or thereabout, and about 4 or 5 1/2 feet high.

"'(4) That on Wednesday, June 20, 1917, in the afternoon of said day, there was a large trash or waste paper wooden box sitting on the eastern side of said railing, nearer the northern end of said railing, and that the cover of said box was thrown open, backward, over the said railing, toward the market wall, and extending over the sidewalk from the railing about one foot or one foot and a half.

" '(5) That said box is, and was at the time herein mentioned, maintained by said defendant as a receptacle for trash and waste paper, and the contents thereof is taken out and carried away by the employes of said defendant.

"'(6) That on said June 20, 1917, the contents of said box was taken out by said employes, and the top or cover left open, in the manner above set forth, by the party emptying said box; and petitioner is informed and believes that the name of the driver of the wagon hauling off said contents was Prince Austin, wagon No. 19, of said defendant.

" '(7) Petitioner further shows that on the afternoon of said day, while walking along said sidewalk on said eastern side of said market, going south, within the public thoroughfare, passing said box, the end of the cover" which was projecting over said railing out into the sidewalk, said cover not being seen by said petitioner, struck petitioner in the left eye, injuring and damaging the same so seriously that petitioner has completely lost the sight thereof.'

"(1) Is the maintenance by the city of such a trash or waste paper box as is described, and the removal of the contents therefrom by the employes of said city, connected with the preservation of the public health?

"(2) Is the maintenance of such a box, and the removal of the contents thereof, an act of the city in the performance of its public duties or governmental functions?

"(3) Can the courts take judicial cognizance of the fact that the maintenance by the city of such a box and the removal of its contents is connected with the preservation of the public health and a part of the governmental functions of the city?

"(4) Under the circumstances alleged in paragraphs 0 and 7 of the petition, as above set out, was the city in performance of a governmental or a ministerial function; and is it liable for the negligence of its employes (if they were negligent under the facts of the case) when the top or cover of the box was 'left open' as above?"

1. A municipal corporation in the exercise of its corporate functions performs two classes of service: (1) Governmental duties; and (2) private, corporate, or ministerial, duties. It seems well settled in this state thatin the negligent performance of its governmental duties a municipal corporation is not liable in damages to one who is injured while the municipality is engaged in the performance of such duties. Wright v. Augusta, 78 Ga. 241, 6 Am. St. Rep. 256; Love v. Atlanta, 95 Ga. 129, 22 S. E. 29, 51 Am. St. Rep. 64; Watson v. Atlanta, 136 Ga. 370, 71 S. E. 664; Mayor, etc., of Savannah v. Jordan, 142 Ga. 409, 83 S. E. 109, L. R. A. 1915C, 741, note, Ann. Cas. 1916C, 240; Cornelisen v. Atlanta, 146 Ga. 416, 91 S. E. 415. And this seems to be the rule in most jurisdictions. 19 R. C. L. 406. But a different rule obtains where in the exercise or neglect of its ministerial duties one is negligently injured by a municipal corporation. Mayor, etc., of Savannah v. Spears, 66 Ga. 304; Smith v. Atlanta, 75 Ga. 110; City of Greensboro v. McGibbony, 93 Ga. 672, 20 S. E. 37.

Municipal corporations are civilly liable in damages arising "for neglect to perform, or for improper or unskillful performance, of their ministerial duties." Civil Code 1910, § 897. The question of liability of the municipality, as between the latter and the public, depends upon whether at the time of the injury the municipality is engaged in a governmental or ministerial duty. If it is engaged, at the time of the injury, in a governmental function, the municipality is not liable for damages caused by the negligence of the persons employed thereby. There is no conflict between the two rules as defined above. The only trouble is in the application of the one or the other rule to given facts, to determine where the one leaves off and the other begins. This is often difficult. How stands the present case in this respect? On June 20, 1917, the contents of the trash and waste paper box was taken out and the cover of the box was thrown open over the railing of the sidewalk and extended over the sidewalk about a foot and a half, and was left in that condition; and on the afternoon of the same day, while the plaintiff was walking along the sidewalk and not seeing the cover of the box, it "struck petitioner in the left eye, " as a result of which plaintiff's eye was so seriously damaged that he lost the sight thereof. In these circumstances it cannot be said that at the time of the injury the municipality was engaged in a governmental duty. That duty had been performed and had ceased for the time being, at least; and the ministerial duty of keeping the streets clear of dangerous obstructions had already begun in contemplation of law. If the city caused the situation of peril, even in the discharge of a governmental function, and left the sidewalk in a dangerous condition, and the plaintiff put himself in a position of danger, it is a question for the jury whether, under all the evidence, he acted with ordinary care and prudence, and what was the proximate cause of the injury. If the rule were otherwise than as above stat ed, the governmental duty might be begun, but never ended, and, regardless of negligence relative to the ministerial duty in keeping the streets and sidewalks free from obstructions, the person injured would be remediless. But there must be a time when the governmental duty must begin and end, and likewise when the ministerial duty begins and continues. In the present case, when the service of emptying the garbage boxes ended, the ministerial duty of keeping the adjacent street or sidewalk clear of dangerous obstructions began; and, if the street was not kept clear, and by reason thereof the pedestrian was injured, the municipality would he liable in damages therefor.

The ministerial duty of keeping the adjacent sidewalk clear of obstructions has nothing to do with the duty of removing the garbage from the boxes. That duty was...