Shaw v. Mayor

• Decision Date: 15 June 1909
• Docket Number: (No. 1,630.)
• Citation: 6 Ga. App. 306,64 S.E. 1102
• Parties: SHAW. v. MAYOR, ETC., OF CITY OF MACON.
• Court: Georgia Court of Appeals

64 S.E. 1102

(6 Ga. App. 306)

SHAW.

v.MAYOR, ETC., OF CITY OF MACON.

(No. 1, 630.)

Court of Appeals of Georgia.

June 15, 1909.

Municipal Corporations (§ 816^*)—Obstructions in Street—Actions Against City— Petition.

The allegations of the petition clearly showing that the negligence charged against the defendant was not the main, controlling, prepon derating, or proximate cause of his injury, the court did right in sustaining a demurrer and dismissing the petition.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1711; Dec. Dig. § 816。*】

(Syllabus by the Court.)

Error from City Court of Macon; Robt. Hodges, Judge.

Action by J. H. Shaw against the Mayor and Council of the City of Macon. Judgment for defendant, and plaintiff brings error. Affirmed.

L. D. Moore, for plaintiff in error.

C. H. Hall, Jr., for defendant in error.

HILL, C. J. Shaw sued the mayor and council of the city of Macon to recover damages for personal injuries. A demurrer was filed by the city, which the court sustained, and this judgment is the error assigned.

The allegations of the petition, briefly stated, make the following case: On the day of plaintiff's injury he was riding a bicycle on Main street. When he was opposite the warehouse or place of business of A. T. Small, he found that two-thirds of the entire width of the street was blocked by farm wagons and by bales of cotton placed there by Small, leaving only a narrow driveway, barely sufficient for two ordinary vehicles to pass on the street. There was no other way for him to go to his destination than to proceed down Main street, and he was compelled to ride through the narrow space left between the cotton and wagons. Soon after he entered the north end of the street, he saw W. M. Guerry enter the south end, driving a horse hitched to a buggy, traveling in a fast trot; and, immediately upon observing Guerry approaching him, he stopped his wheel, drew himself close against the cotton, and caught hold upon the cotton with his left hand, intending to pull himself up against the cotton, so as to escape a collision with the horse and buggy, and before he had time to climb to the top of the bales of cotton the horse and buggy reached him, and the small end of one of the buggy shafts struck his fight arm, and he received the injuries for which he brings suit. He charges that the defendant city caused his injury by reason of the fact that it had permitted the bales of cotton to be stacked in and upon the street, and allowed the street to be blocked and obstructed for weeks and months prior thereto, and neglected to require this obstruction removed from the street, and that the obstruction constituted a public nuisance, for the maintenance of which the defendant was responsible.

The demurrer attacked the petition on the grounds: (1) The allegations showed that the negligence alleged against the defendant was not the proximate cause of the plain-tiff's Injury. (2) Under the allegations of the petition, the direct and immediate cause of the injury was the collision of the plaintiff...