Parker v. The Mayor And Council Of Macon

• Decision Date: 31 December 1869
• Citation: Parker v. The Mayor And Council Of Macon, 99 Am. Dec. 486, 39 Ga. 725 (Ga. 1869)
• Parties: ROBERT N. PARKER, plaintiff in error. v. THE MAYOR AND COUNCIL OF MACON, defendant in error.
• Court: Georgia Supreme Court

39 Ga. 725

ROBERT N. PARKER, plaintiff in error. v. THE MAYOR AND COUNCIL OF MACON, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Page 725 Case against corporation for nuisance. Before Judge Cole. Bibb Superior Court. May Term, 1869.

Parker's action on the case against the Mayor and Council of Macon contained the following averments: In 1865, a *brick wall, which stood on a specified street of Macon, fell upon him while he was upon said street engaged in his business, and severely injured him, causing an outlay of money, loss of time, etc., to his damage $10,000 00; said wall was, as the event proved, from its character and position, dangerous to passengers upon said street; it was defendant\'s duty to have removed it or otherwise secured passengers from danger from its falling; Parker, when he was so injured was relying upon the belief that they had performed this duty, but they had not and therefore were liable to pay him damages. The defendant demurred. Upon the argument it was admitted on both sides, that the wall was private property, on the line of said street but not in the street, that the buildings, of which it was a part, were burned in April, 1865, leaving some of the front wall on said street standing, and that after plaintiff\'s injury, upon complaint of various citizens, the defendant removed the remnant of the wall, and the demurrer was based upon these and the facts averred in the petition. The demurrer was sustained, and that is assigned as error.

A. O. Bacon, for plaintiff in error, made the following points:

1. The City of Macon, a corporation aggregate, is liable in an action of tort. The contrary doctrine has been exploded, and the proposition as announced is recognized as law by all the Courts of this country, including the Supreme Courts of Georgia and the United States.

2. The duty rests upon the city to keep its streets and sidewalks in a condition of repair which will render them safe and convenient for passengers, and the city is liable for injuries received by persons through neglect of this duty.

(a.) The charter of the city, section 14, page 9, confers full power and authority on the Mayor and Council to regulate the streets and sidewalks of the city, and to remove and abate all constructions and nuisances affecting the safety and convenience of the same.

(b.) May, or any equivalent term, is tantamount to shall, when used in conferring power on a public officer for the *public good. Skinner Eng. K. B., 370; 2 Salkeld, 609; Vason v. The City of Augusta, 38 Ga., 542.

(c.) The neglect of the duty imposed makes the city liable for damages accruing. Code, sec. 2902; The People v. The Cor-poration of Albany, 11 Wendell, 542; The City of New York v. Furze, 3 Hill, 614.

3. Was the injury received by plaintiff caused by such nonrepair or neglect to provide for the security of the sidewalk, as would make the city liable for the damages? We say it was, because—

(a.) The duty of repairing the streets and sidewalks and keeping them safe and convenient, is a general duty, to do everything necessary (within legal authority) for the safety and security of persons using the streets, and is not a mere technical duty for the regulation of the paving stones and the removal of material obstructions actually upon the sidewalks. A failure or neglect to remove or correct any thing which endangers the security and life of a passenger on the street, is such a non-repair or neglect of duty concerning the street as will make the city liable for the damages which ensues. Kelsey v. Glover, 15 Vermont, 715; Palmer v. Andover, 2 Cush., 607; Bacon v. The City of Boston, 3 Cush., 179; Collins v..Dorcester, 6 Cuch, 396; Raymond v. Lowell, 6 Cush., 529; Chicago v. Robbins, 2 Black, 422; Nebraska City v. Campbell, 2 Black, 592; Drake v. The City of Lowell, 13 Metcalf, 292; Fitz v. Boston, 4 Cush., 365; Snow v. Inhabitants of Adams, 1 Cush., 443; Cogswell v. Lexington, 4 Cush., 307; Chamberlain v. Enfield, 43 New Hampshire, 356; Regina v. Watts, 6 Salkeld, 357; Hull v. Richmond, 2 Wood and Win, 337; Williard v. Newbury, 22 Vermont; 2 Smith, 158, 161.

(b.) The ruined wall had stood six months and its condition was so notorious that notice to the city is presumed. Reed v. Northfield, 13 Pickering, 94.

4. If these positions are correct the city is liable for the damages if it was in the power of the authorities to have prevented it.

*It was in their power to have protected passengers upon this street from the danger, because—

(a.) This ruined wall overhanging and threatening to fall upon the street was a most patent, unmistakable, decided nuisance, which it was the duty of the city to abate, and which it had the authority to abate summarily. Code, section 4024, gives the city authorities power to abate the nuisance summarily. The City Charter, section 38, page 28, gives the full power to do so. In many of the city ordinances this power is fully recognized and exercised. See among others 77, 85, and 86, page 56. The city exercised the power in this identical case and pulled down the remaining portion of this wall after the plaintiff's injury.

(b.) If it is decided that the city had not the power to abate, summarily, this nuisance, the city did have the power to protect passengers from the danger of the wall, by a railing or a notice of the danger, and failing so to do, are liable for the damage. Palmer v. Andover, 2 Cush., 600; Collins v. Dorchester, 6 Cush., 396; Norris v. Litchfield, 35, N. Hampshire, 271.

5. The question is not affected by the...