Mayor and Council of Americus v. Johnson
| Decision Date | 25 July 1907 |
| Docket Number | 391. |
| Parties | MAYOR AND COUNCIL OF AMERICUS v. JOHNSON. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Municipal corporations are required to keep their streets and sidewalks in safe condition for travel in the ordinary modes by day and by night; and are responsible if they fail to exercise ordinary and reasonable care and diligence for the accomplishment of this end.
[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§ 1616.]
A traveler using a street or sidewalk is required to use ordinary care to avoid being injured by any defect therein or obstruction thereon. What amount of lookout for defects or obstructions he must observe in order to meet this requirement is a question of fact for the jury, to be determined by the circumstances of each case.
[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 1673, 1754-1756.]
An instruction to the jury which, in attempting to define ordinary care, makes the jurors the standard of what is a prudent person, is erroneous.
[Ed Note.-For cases in point, see Cent. Dig. vol. 37, Negligence § 372.]
In order to bind a municipal corporation for the care of a strip of land offered by an abutting owner as a sidewalk, acceptance by the proper city authorities must be shown. The acceptance may be express or implied. If express, it can be shown only by the minutes of the official tribunal. If implied, it may be shown by proof that the sidewalk was worked and used under authority of the council, of other body having such matters in charge. Testimony that work was done upon the sidewalk by the street hands of the municipality, or by its engineer, or under the directions of its street committee, is admissible for the purpose of raising the inference that the work was done by authority of the municipal body.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Dedication, §§ 64, 83.]
Error from City Court of Americus; C. R. Crisp, Judge.
Action by Aline Johnson against the mayor and council of Americus. Judgment for plaintiff. Defendant brings error. Reversed.
Lane, Maynard & Hooper, for plaintiff in error.
E. A. Nisbet and Blalock & Cobb, for defendant in error.
The plaintiff obtained a verdict against the city of Americus on account of injuries received by her through her having fallen over a stump which she claimed was situated upon the sidewalk on the north side of Church street, in that city. There was sharp conflict in the testimony as to whether the stump was within or without the northern margin of the sidewalk, and also as to whether the walk on the north side of the street was a sidewalk, in the sense of a walk used as a portion of a public street and under the control and responsibility of the city government. The injury occurred at night; but there was an electric arc lamp nearby. The plaintiff admitted that she had seen the stump prior to the time of the injury; but explained that she had been accustomed to use the walk on the south side of the street, and was present on the north side on this occasion only by reason of the fact that the other side was temporarily obstructed, and that it had escaped her attention and memory that there was a stump on the walk she was using. The defendant introduced proof showing that, under the deeds by which the city held title to the street, this stump and probably the entire walk on the north side of the street were beyond the limits of the street. The plaintiff introduced evidence showing that the owner of the abutting property on the north side of the street had set his fences back, and had offered a dedication of the strip of land on which the stump was situated for the purposes of a sidewalk, and that the street force of the city had worked it as a part of the street. The minutes of the city council were introduced, showing that that body had never formally accepted the dedication. In the motion for a new trial several exceptions were taken to instructions of the court to the jury, and to rulings upon evidence. Upon that motion being overruled, the city brings error.
1. The degree of diligence required of municipal corporations in the maintenance of their streets and sidewalks is now well settled. It is required that they keep their streets and sidewalks in safe condition for travel in the ordinary modes by day and by night; and they are responsible for a failure to exercise ordinary and reasonable care and diligence to this end. Whether they have exercised that care and diligence is a question of fact, to be determined by the circumstances of each case. In determining this question, regard must be had as to whether the street is newly opened or has been in existence for some time, whether the municipality is small and poor, or populous and wealthy, whether the street is a frequented thoroughfare or a remote passageway. After viewing these and all other legitimate considerations, the jury must determine whether, in the light of all the circumstances, the municipality has used reasonable diligence to make the highway safe. Idlett v. Atlanta, 123 Ga. 821, 51 S.E. 709; City Council of Augusta v. Tharpe, 113 Ga. 152, 38 S.E. 389, and citations; Elliott's Roads and Streets, § 613.
2. The court instructed the jury as follows: "I charge you that there is no duty on a person walking on a sidewalk to watch for the condition of the sidewalk, because the law imposes it upon the municipality to have it reasonably safe." Every person is bound to ordinary care to...
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