Mitchell County v. Dixon
| Decision Date | 03 May 1917 |
| Docket Number | (Nos. 8199, 8200.) |
| Citation | 92 S.E. 405,20 Ga.App. 21 |
| Parties | MITCHELL COUNTY. v. DIXON. DIXON. v. MITCHELL COUNTY. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
Error from Superior Court, Mitchell County; I. J. Hofmayer, Judge pro hac.
Suit by W. C. Dixon against Mitchell County. Demurrer to first count of petition overruled, and demurrer to second count sustained, and defendant brings error, and plaintiff files a cross-bill of exceptions. Affirmed upon both bills of exceptions.
Peacock & Gardner and E. M. Davis, all of Camilla, for plaintiff in error.
Pope & Bennet, of Albany, for defendant in error.
GEORGE, J. W. C. Dixon filed a suit against Mitchell county in two counts. The first count, which the court below held good as against the county's demurrer, alleged, in substance, that the plaintiff, on September 9, 1912, in the daytime, was driving in his buggy southward along a public road of Mitchell county, at a place where the public road crossed a stream, and where the county maintained a bridge over the stream; that the bridge was built since the year 1888, and that it consisted of a wooden structure about 20 feet long, measured along the said road, and earthen abutments for the same extending from said wooden part northward and southward along said road; that while plaintiff was thus driving along on said abutment, the same being a part of the bridge, his buggy fell suddenly into a large hole about 4 feet wide, about 4 feet long, and 3 feet deep, which was about 15 or 20 feet south of the wooden part of the bridge, and about 20 feet west of the central and most elevated part of said abutment; that by reason thereof plaintiff was thrown from his buggy and his buggy was overturned, and plaintiff was severely injured; that said defect in said abutment was known to the county commissioners, and was not known to plaintiff; and that plaintiff, in February after said injury, orally presented his claim for his said injuries to said county commissioners in lawful meeting assembled, and said county commissioners then and there accepted such presentation of said claim and acted upon it, and promised plaintiff that they would investigate said claim and advise him whether it would be paid, and that they did investigate and refused to pay it, and that, by reason of the foregoing facts, said county commissioners waived presentation of said claim in writing and estopped the county from setting up the defense that said claim had not been presented in writing. Plaintiff in said first count alleged also that he had brought suit against the county within 12 months, and that service had been duly acknowledged by the county on said suit within 12 months after the injury complained of, and that said suit was pending until July 5, 1915, when the same was withdrawn by plaintiff, and that the present suit was brought in renewal thereof, and within 6 months after the withdrawal and after the payment of all costs. A copy of the original suit was attached to the present suit and made a part of both counts of the petition. In an amendment to the first count of the petition the plaintiff alleged that at the time of his injury his eyesight was somewhat defective; that it was sufficiently good to enable him to travel by buggy in perfect safety on roads and bridges which were maintained with reasonable care and diligence; and that at the time of his injury the road overseer and other agents of said county were operating a large force of convicts and mules and scrapes on said bridge and abutment, and said convicts and mules and vehicles were being driven at hard labor and in rapid motion around and about the defect in said bridge and its abutment, and largely concealing said defects from plaintiff, and that the newly piled up earth and newly made holes and the colors of the same were such as to make it impossible for plaintiff, as affairs there existed, to discover said defect, and for these reasons the plaintiff did not know of said defect, and could not, by the exercise of ordinary diligence, have discovered the same in time to avoid the injury.
The second count of the petition, which was stricken by the court upon demurrer, contained substantially the same allegations of fact set out in the first count, except that the hole into which plaintiff's buggy suddenly fell was alleged to be outside of the abutment and in the ground a few feet west of the west side of the said abutment, but it was averred that even though said hole were outside of the abutment, the county was liable to him for his injury, by reason of certain facts set out in that count, in substance as follows: That said bridge over which plaintiff was passing at the time he was injured consisted of a wooden structure about 20 feet long, measured along said road, and about 12 feet wide, measured across said road, and about 5 feet above the general level of the ground on each side of said bridge (the stream over which said bridge extended was what is known as a South Georgia "slough"; that is, a stream carrying a large body of water at certain seasons of the year, but having for the most of its length practically no banks, but extending on the contrary in a broad, shallow, slowly moving sheet of water, and flowing through the low places of the very flat level country found often in the "wiregrass section" of Georgia). There was an earthen abutment, about 15 feet wide, across said road, extending from said wooden part of said bridge northward and southward along said road for a distance of 75 or 100 feet from said wooden part of the bridge, said abutment being of the same height as said bridge, where the same, joins said bridge, to wit, about 5 feet above the general level of the ground on each side of said road, and the height of said abutment became gradually less as the distance from said wooden part of said bridge increased, until said abutment came to the level of the surrounding country and merged into the road; that for more than 3 years prior to plaintiff's injury said county had maintained said bridge and abutment as above described, and had also maintained, at a point about 10 feet south of the wooden structure of said bridge, a wood apron, or short bridge, consisting of planks laid side by side upon sills, said apron extending laterally from the top of said abutment downward and westward across a drain ditch, which ran along the western side of said abutment at that point to the beginning of a settlement road or private way, which private road branched off from said public road and its bridge at that point, which settlement road extended westward to plaintiff's farm; that plaintiff had been using said bridge and abutment and said apron and said settlement road as a means of approaching his farm during the said 3 years; that on the day when he was injured the county authorities were working the county convicts and road hands at that point, and had, unknown to plaintiff, piled up a lot of fresh earth on said abutment, so that the level thereof at the point where said "apron" extended from it into said "settlement" road was about one foot higher than it had been previously, so that there was a sharp drop down, or decline, from the top ofsaid abutment to said "apron, " so that a buggy turning off from said abutment at its new level, and going onto said apron, would acquire a dangerous speed, by reason of said drop down; that at the same time said county authorities had also dug a large hole, about 4 feet wide and 4 feet long and 3 feet deep, in the ground to the westward of said "apron, " said hole extending about 18 inches into the beaten track of said "settlement" road, so that a buggy which turned off from said public road and bridge and ran down said "apron" would run into said hole; that plaintiff, driving as he had been accustomed to do, did turn his buggy from the top of said abutment, at its said new level, onto said "apron, " and, in trying to drive along said "apron" and said settlement road extending to the westward, plaintiff's buggy, by reason of the sharp decline from the new level of said abutment down to said "apron, " ran rapidly down said "apron" and into said hole, whereby plaintiff was thrown out of said buggy and injured as set forth in the petition. The specific defects in said abutment, which plaintiff claims in said second count to be the cause of his injuries, were alleged to be as follows: (1) The existence of said "apron" leading from the top of said abutment down towards said settlement road (said "apron" constituting an implied invitation to travelers to descend from the top of said abutment by means of said "apron") at a time when there was immediately to the west of said "apron, " and at its lower end, said open hole, the danger of which was partially concealed; (2) the existence of said wooden structure and abutment at so great a height, to wit, a foot or more, above the highest part of said "apron, " so that the drop down of any team, leaving the top of said abutment and going down onto said "apron, " was such as to cause great and dangerous speed to such team in going down said apron and into said hole; (3) the existence of said wooden structure and its abutment in said condition, without any guardrails or other means to prevent travelers from going off from said wooden structure and the top of said abutment, down upon said "apron" and into said hole; (4) the existence of said wooden structure and abutment in said condition, without any warning signs, or other warning, placed there to warn travelers against using the same in said dangerous condition. The second count likewise contained an allegation to the effect that plaintiff's eyesight was somewhat defective, that it was sufficient for him to travel in safety on roads and bridges maintained with reasonable care, and also that at the time of the injury agents of the county were operating a large force of convicts and mules and scrapes on said bridge and abutment,...
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