Phillips v. Town of Fort Oglethorpe, 43240

• Decision Date: 07 June 1968
• Docket Number: 2,No. 43240,3,Nos. 1,43240,s. 1
• Citation: 162 S.E.2d 771,118 Ga.App. 62
• Parties: Alvin D. PHILLIPS, by Next Friend v. TOWN OF FORT OGLETHORPE
• Court: Georgia Court of Appeals

Page 771

162 S.E.2d 771

118 Ga.App. 62

Alvin D. PHILLIPS, by Next Friend v. TOWN OF FORT OGLETHORPE.

No. 43240.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

June 7, 1968.

Rehearing Denied June 25, 1968.

Certiorari Denied Sept. 25, 1968.

Certiorari Granted on Reconsideration Oct. 2, 1968.

SYLLABUS BY THE COURT

An action in tort will lie against a municipality which, with knowledge of the facts, maintains a defective traffic light at an intersection which periodically shows the green or 'go' signal in all four directions simultaneously, resulting in injury to the plaintiff by collision with an automobile approaching at right angles, both entering the intersection as a result of the faulty signal, since its maintenance in this condition renders the street not reasonably safe for use.

The minor plaintiff, by next friend, filed an action in tort for personal injuries against Earl and Sylvia Hamilton, owner and driver respectively of an automobile with which the plaintiff sustained an intersection collision, and the Town of Oglethorpe in which it occurred. The present appeal is from the judgment sustaining the general demurrer of the municipality only. The petition alleges negligence against the latter in failing properly to maintain in operation a signal light at a crowded intersection, as a result of which the light showed either red or green on all four sides simultaneously. This condition, alleged to be a proximate cause of the collision, had existed for over two weeks. The mayor, aldermen, and chief of police all had notice of its condition and failed to correct it, even though numerous collisions resulted, and the chief of police and mayor knew that six had occurred at the intersection on the day plaintiff was injured because the defective traffic control system which flashed simultaneous green lights in all directions caused vehicles approaching the intersection to run into each other. A proper notice of claim under Code Ann. § 69-308 was made within six months, and the action filed more than 30 days thereafter.

Frank M. Gleason, Rossville, for appellant.

John E. Wiggins, Ringgold, for appellee.

Henry L. Bowden, Martin McFarland, Atlanta, amici curiae.

DEEN, Judge.

The duty imposed by Code § 69-303 on municipalities to keep the streets in a reasonably safe condition for travel is a ministerial or corporate function, a violation of which resulting in injury to the plaintiff is actionable. Herrington v. Mayor & Council of Macon, 125 Ga. 58(4), 54 S.E. 71; Mayor and Aldermen of Milledgeville v. Holloway, 32 Ga.App. 734(1), 124 S.E. 802; Mayor etc. of City of Macon v. Smith, 14 Ga.App. 703, 706, 82 S.E. 162; City of Waycross v. Howard, 42 Ga.App. 635, 157 S.E. 247. As against a general demurrer, and disregarding mere legal conclusions of the pleader, the real issue in this case is whether the maintenance of a defective traffic light by the city, with knowledge of the defect, in such manner as to cause automobiles relying upon it to collide with each other constitutes negligence in the exercise of a governmental or ministerial function, for we believe the conclusion that it is negligence, if proved as alleged, is beyond dispute. Applying the Code section, we must accept that by definition the duty to keep the streets in a reasonably safe condition for travel is a ministerial duty. The facts alleged show that the street, with the traffic light showing a 'go' signal in all directions, was not safe for travel and every car approaching the intersection was, by virtue of this fact, on collision course. The contention is, however, that regardless of these facts the maintenance of the traffic light system is governmental, as a part of the police power of the municipality, and this also is true. A fine but valid distinction has been drawn in similar cases. In Mayor etc. of Savannah v. Jones, 149 Ga. 139(4), 99 S.E. 294 the court held: 'The municipality was in the performance of a governmental function in maintaining and emptying the box above described, but the municipality was also under ministerial duty to keep its streets and sidewalks free from obstructions such as alleged. Consequently, under the facts alleged in the petition, at the time of the injury the exercise of the governmental function of emptying the box had ceased, and the ministerial duty of keeping the streets and sidewalks free from obstructions was obligatory, and the municipality would be liable in damages for negligence.' The duty of the municipality is to keep its streets in reasonably safe condition for travel by ordinary modes, and it will be liable for damages for injuries sustained in consequence of its derelictions in this regard, no matter by what cause the street may have become defective and unsafe, where the city knew or should have known of the defect in time to repair it or to give warning of its existence. See City of Atlanta v. Robertson, 36 Ga.App. 66(1), 135 S.E. 445. In that case the defect lay with the defective maintenance of a sewerage system, a governmental function, resulting in an unsafe traffic condition by which the plaintiff was injured. See also Allison v. Medlock, 224 Ga. 37(4), 159 S.E.2d 384. Likewise, the maintenance of a park is a governmental function, but an object protruding from the park above the sidewalk, rendering travel on the sidewalk unsafe, is actionable. City of Macon v. Stevens, 42 Ga.App. 419(1), 156 S.E. 718.

A case closely in point is Johnston v. City of East Moline, 405 Ill. 460, 91 N.E.2d 401. A municipal street intersection was controlled by four sets of traffic lights or standards. The one on the northwest corner was knocked out and the city, with knowledge of the condition, allowed traffic to continue for several days controlled by only three standards. As a result of the absence of the traffic signal, an automobile which would otherwise have had the right of way collided with another automobile entering at right angles on a green light. The court held in part: 'The question of what the city did or permitted at the intersection, in the matter of controlling or not controlling traffic after the northwest standard was removed, is before us, and whether or not its acts and omissions in that regard were in the exercise of a governmental function or a corporate (ministerial) duty must be decided. * * * A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. * * * Appellant having elected to install, and having installed the signal system in question, it was a corporate duty not to permit its operation in a manner calculated to cause injury to others. * * * it failed to perform a corporate duty.' 'The 'defects in its streets' for which a municipal corporation may be held liable under the provisions of this code section ( § 69-303) have been held to include objects adjacent to, and suspended over, the municipality's streets and sidewalks, the presence of which renders the use of those thoroughfares more hazardous.' City Council of Augusta v. Hammock, 85 Ga.App. 554, 560, 69 S.E.2d 834, 838.

Some of the Georgia cases have stated broadly that the maintenance of traffic control systems by muncipalities is a governmental function, and the difficulty lies in the meaning of the word maintenance within the context of the case. In Stanley v. City of Macon, 95 Ga.App. 108, 97 S.E.2d 330, one of the cases where this language appears, the defect in the traffic control installation was above the street and allowed the escape of high voltage current so that a Georgia Power Company employee climbing the pole in connection with his own duties for the power company came in contact with it. The court specifically pointed out: 'It cannot reasonably be said that defective maintenance of a traffic control signal 15 feet above the street at a place which could not be reached except by climbing a pole is in such a location as to constitute defective maintenance of the streets and sidewalks along which normal pedestrian and vehicular traffic moves, and liability against the city cannot be predicated upon this theory.' Had the defect inhibited the reasonably safe flow of traffic, an opposite conclusion would doubtless have been reached, and this is where Code § 69-303 comes into play. In Arthur v. City of Albany, 98 Ga.App. 746, 747, 106 S.E.2d 347 it was held that the city's discretion as to the location of stop signs was governmental in character. This being so, the city could either erect or remove the signs at will, and the fact that one previously erected and removed was not replaced did not render it liable. See Code § 69-302. In City of Rome v. Potts, 45 Ga.App. 406, 165 S.E. 131 the plaintiff complained that the timing sequence of the traffic light was too fast, but the decision as to how the light should be timed, like the decision to erect it in the first place, was within the discretion of the municipal authorities.

The allegations of the present case, if proved, established that the municipality was negligent in not repairing its traffic control device, that the malfunction of the device was a proximate cause of the plaintiff's injuries, and that the negligence alleged rendered the use of the streets less sale.

The trial court erred in sustaining the general demurrer.

Judgment reversed.

FELTON , C.J., JORDAN, P.J., and HALL and WHITMAN, JJ., concur.

FELTON, C.J., and JORDAN, P.J., also concur specially.

BELL, P.J., and EBERHARDT, PANNELL and QUILLIAN, JJ., dissent.

JORDAN, Presiding Judge (concurring specially).

I concur with the majority opinion and would reverse for the additional reason that in my opinion the petition alleges facts sufficient to constitute a nuisance, the theory upon which the petition is based. If it can be said that the facts...