Mitchell County v. Dixon

• Decision Date: 03 May 1917
• Docket Number: 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

92 S.E. 405

20 Ga.App. 21

MITCHELL COUNTY v. DIXON.

DIXON v. MITCHELL COUNTY.

Nos. 8199, 8200.

Court of Appeals of Georgia, First Division

May 3, 1917

Syllabus by the Court.

"If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this clause." Civ. Code 1910, § 4381. This section of the Code is remedial and is to be given a liberal construction. The present action is a renewal of a dismissed suit, and was filed within six months after the dismissal. The cause of action is not barred.

Section 411 of Pol. Code 1910 provides that "all claims against counties must be presented within twelve months after they accrue or become payable, or the same are barred, unless held by minors or other persons laboring under disabilities, who are allowed twelve months after the removal of such disability." If under this section it is required that the claim against the county be presented in writing within the time prescribed, the bringing and service of a suit against a county within 12 months of the accrual of the right of action is a sufficient presentation of a claim against the county within the meaning of the section quoted.

A part of a public road which constitutes the abutment to a public bridge, and which is necessary and essential to the existence and use of the bridge, is a portion of the bridge itself, and the obligation of a county to keep the bridge in repair, and the liability resulting from the failure to discharge the duty of repairing, apply to that part to the same extent as it does to the portion of the structure ordinarily called the bridge.

A county is not liable for an injury produced by a defect in a private way or road; nor is it liable for a failure to provide a safe approach from a private way to a public highway of the county, or vice versa. A county is not liable for negligence in maintaining or permitting an unsafe approach from a private way or road to a public bridge; such approach being neither essential nor necessary to the existence or use of the public bridge.

A petition which shows that the plaintiff knew of a defect in the bridge, or in its earthen abutment forming a part thereof, and that there was some danger in driving over it is not subject to general demurrer, unless it appears that the danger was so obvious that no ordinarily prudent and cautious man would venture on it or over it. A traveler may know of a defect in a bridge or the abutment forming a part thereof, and that there is some degree of danger in attempting to go on or over it, and still may recover from the county for injuries sustained in so doing, if it clearly appears that the danger was not obviously of such a character that driving over the bridge would necessarily amount to a want of ordinary and reasonable care and diligence, and if it also appears that in driving over the bridge the plaintiff in fact observed such care and diligence.

The first count of the petition set forth a cause of action, and was not subject to the demurrers, general or special; the second count did not set forth a cause of action, and the court properly sustained the general demurrer to that count.

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...