Smith v. Hiawassee Hardware Co.

• Decision Date: 24 May 1983
• Docket Number: 65830 and 65831,Nos. 65829,s. 65829
• Citation: Smith v. Hiawassee Hardware Co., 305 S.E.2d 805, 167 Ga.App. 70 (Ga. App. 1983)
• Parties: SMITH et al. v. HIAWASSEE HARDWARE COMPANY et al. WOOD et al. v. SMITH et al. CITY OF HIAWASSEE v. SMITH et al.
• Court: Georgia Court of Appeals

Page 805

305 S.E.2d 805

167 Ga.App. 70

SMITH et al. v.HIAWASSEE HARDWARE COMPANY et al.

WOOD et al. v.SMITH et al.

CITY OF HIAWASSEE v.SMITH et al.

Nos. 65829, 65830 and 65831.

Court of Appeals of Georgia.

May 24, 1983.

Rehearing Denied June 22, 1983.

Certiorari Granted Sept. 2, 1983.

Bruce M. Edenfield, J. David Dantzler, Jr., Atlanta, for appellants in No. 65829.

Robert F. Oliver, Clarkesville, Martin W. Welch, Cleveland, Weymon H. Forrester, Thomas M. Cole, Gainesville, for appellees in No. 65829.

Robert F. Oliver, Clarkesville, for appellants in No. 65830.

Bruce W. Edenfield, J. David Dantzler, Jr., Atlanta, Martin W. Welch, Cleveland, Weymon H. Forrester, Thomas M. Cole, Gainesville, for appellees in No. 65830.

Martin W. Welch, Cleveland for appellant in No. 65831.

Bruce W. Edenfield, J. David Dantzler, Jr., Atlanta, Robert F. Oliver, Clarkesville, Weymon H. Forrester, Gainesville, for appellees in No. 65831.

QUILLIAN, Presiding Judge.

The Smiths are the grandparents and guardians of Franklin Everett, a minor, whose mother, Rita Smith Everett, was killed when her automobile collided in an intersection with an automobile owned by Pope Wood and driven by his son, Timothy Dwight Wood.The collision occurred at the intersection of Berrong and Wood Streets in the City of Hiawassee(City), on the southwest corner of which stood a small wooden building erected by Hiawassee Hardware Company(HHC).The Smiths, as guardians of the deceased's child, brought this action for wrongful death in his behalf against the Woods, HHC, and the City.They alleged that the decedent's death was caused by Wood's son's negligent driving, for which Wood was also derivately liable under the family purpose doctrine; that HHC also caused the collision by erecting and maintaining a building at the intersection which obstructed the drivers' vision; and that the city was negligent in not doing anything about HHC's building which obstructed drivers' vision, failing to maintain a stop sign on Wood Street at the intersection, and failing to maintain safe and adequate streets.Upon trial, the jury found for HHC and against the Woods and the City.The Smiths, the Woods and the City all appeal.Held:

No. 65829

1.The evidence authorized the jury to find that HHC's small building at the intersection obstructed a clear view of the two drivers from either of the intersecting streets to the other intersecting street.The evidence was in conflict as to whether the structure was situated in the public right-of-way or not.

OCGA § 32-6-1(Code Ann. § 95A-903) states it is unlawful for anyone to obstruct or encroach upon any part of any public road.OCGA § 32-6-51(b)(Code Ann. § 95A-902) makes it unlawful for anyone to erect or maintain "in a place or position visible from any public road" any unauthorized structure which "[o]bstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining roads, or to property abutting such public road in such a manner to constitute a hazard to traffic on such roads."

Subsection (c) of OCGA § 32-6-51(Code Ann. § 95A-902) goes on to state that any unauthorized structure erected or maintained "on the right-of-way of any public road" is a public nuisance which may be removed by the appropriate officials; and any such structure not on a road right-of-way which obstructs drivers' vision to an intersecting road so as to constitute a traffic hazard may be ordered removed by officials providing certain procedures are followed.

In accordance with the evidence supporting its theory that HHC was liable because of its erection and maintenance of the building at the intersection which blocked the clear view of drivers on the intersecting roads, the Smiths requested a charge based on the foregoing statutes which the court gave, after adding the words "in the road right-of-way," as follows: "I charge you that under the law of this State, it is unlawful for any person to erect, place or maintain in a place or position visible from any public road any unauthorized structure in the road right-of-way which obstructs a clear view from any public road to an intersecting or adjoining public road in such a manner as to constitute a hazard to traffic on such road or because of its nature, construction or operation interferes with the vision of drivers of motor vehicles."

We do not find that the addition of the words "in the road right-of-way" to the requested charge was error.

Together OCGA §§ 32-6-1(Code Ann. § 95A-903) and 32-6-51 (Code Ann. § 95A-902), supra, clearly make the erection and maintenance of a structure in a public right-of-way per se unauthorized as well as unlawful, and the structure may be removed as a public nuisance.But § 32-6-1(Code Ann. § 95A-903) does not apply to structures which are on private property adjacent to public roads.Structures on private property adjoining road rights-of-way only become unlawful under § 32-6-51(Code Ann. § 95A-902) if they obstruct a clear view of roads in such a manner as to constitute a traffic hazard, and they are unauthorized.There is no per se lack of authorization as obtains in structures placed in public road rights-of-way, and the party asserting that a structure placed on private property is unauthorized has the burden of establishing the fact of the assertion by showing that the structure was erected or maintained in violation of some statute, code, or local ordinance.There is no such evidence in this case to support a finding that HHC's building, if not in the road right-of-way, was unauthorized.

2.The Smiths' contention that the verdict was inconsistent because there was no basis upon which the jury could have found the City liable without finding HHC liable is also without merit.HHC's possible liability arose only from its erection and maintenance of its building.While the City's possible liability is also predicated on its failure to do anything about HHC's building, liability could also arise from its failure to maintain its streets in a reasonably safe condition, upon which the jury was instructed.Thus, if HHC's building obstructed vision, but was not in the right-of-way, the City still has a duty to maintain the intersection in a reasonably safe condition by some means.

No. 65831.

3.Appellant City's first enumeration of error has no merit.

4.In addition to other allegations of negligence by the City, it was also alleged that the City was negligent for failure to maintain a stop sign at the intersection.At the close of the evidence the court, finding that there was no evidence to support the allegation concerning the stop sign, in effect directed a verdict for the City on that issue.However, the court did not instruct the jury concerning this ruling, which the City asserts was error.

We find no merit in this assertion as the City made no request for such an instruction, nor any objection to the charge as given, thereby presenting no basis upon which to assert error on appeal, OCGA § 5-5-24(a)(Code Ann. § 70-207(a));Harris v. Miller Brother's Farms, 161 Ga.App. 377(5), 288 S.E.2d 639.

5.Error is enumerated because the City's motions for directed verdict and judgment notwithstanding the verdict, made on the grounds that there was no evidence that HHC's building encroached on the City's street right-of-way, were denied.

The evidence on this issue was in conflict and did not demand a verdict for the City.OCGA § 9-11-50(a)(Code Ann. § 81A-150(a))." 'In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the "any evidence" test.[Cits.]'[Cit.].There being some evidence to support the verdict, there was no error in denying appellant's motion for a directed verdict.Similarly, where there is some evidence to support the verdict, it is not error to deny the defendant's motion for judgment notwithstanding the verdict ..."Ga. Farm, etc., Ins. Co. v. Matthews, 149 Ga.App. 350(1), 351, 254 S.E.2d 413.

6.The trial court denied the City's motions for judgment notwithstanding the verdict, to amend the verdict and to grant a new trial, made on the grounds that the City could not be held liable if HHC was not liable, which is enumerated as error.

The City argues that its liability was totally dependent upon HHC's liability and that the...