Stanley v. City of Macon

• Court: Georgia Court of Appeals
• Writing for the Court: TOWNSEND; GARDNER, P. J., and CARLISLE
• Citation: Stanley v. City of Macon, 95 Ga.App. 108, 97 S.E.2d 330 (Ga. App. 1957)
• Decision Date: 12 February 1957
• Docket Number: No. 2,No. 36461,36461,2
• Parties: D. F. STANLEY v. CITY OF MACON

Page 330

97 S.E.2d 330

95 Ga.App. 108

D. F. STANLEY v. CITY OF MACON.

No. 36461.

Court of Appeals of Georgia, Division No. 2.

Feb. 12, 1957.

Syllabus by the Court

1. The operation of a traffic control system by a municipal corporation being a governmental function in the exercise of its police power, the city is not liable for injuries caused by the negligent installation and maintenance of such equipment.

2. The petition fails to set forth a cause of action based on nuisance for the reasons (a) that the petition alleges that the injury resulted from a break in the insulation of a lead wire, but fails to show that the defendant constructed or maintained the instrumentarily in its defective condition or had knowledge or reason to know of the existence of the defect, and (b) otherwise fails to allege facts sufficient to constitute the alleged defective condition a nuisance as to the plaintiff.

D. F. Stanley filed an action in two counts against the City of Macon in the Superior Court of Bibb County, seeking damages for personal injuries sustained because of an electric shock he received while in the employment of the Georgia Power Company and in the course of his duties when he climbed a light pole located at the intersection of two city streets and on which the city had installed electrical traffic controls from which he received an electric shock. The trial court sustained the demurrers and dismissed the petition, and the exception is to this judgment.

Luther U. Bloodworth, Bloch, Hall, Grover & Hawkins, Macon, for plaintiff in error.

C. Cloud Morgan, T. Reese Watkins, Harris, Russell, Weaver & Watkins, Macon, for defendant in error.

TOWNSEND, Judge.

1. Operation of a traffic light conducted in behalf of the public safety is a governmental function, for the negligent performance of which the city is not liable. City of Rome v. Potts, 45 Ga.App. 406, 410, 165 S.E. 131; Stubbs v. City of Macon, 78 Ga.App. 237 (2-b), 50 S.E.2d 866. The first count of the petition in this case alleges that the defendant municipality was liable for the negligent installation and maintenance of a traffic-control signal and fire alarm box on a telephone pole belonging to the Georgia Power Company, as to which the conduit and control box were not grounded and the insulation of the high voltage conduit was broken so that the plaintiff, an employee of the Power Company required to climb the pole in the ordinary course of his duties, came in contact with a bare section of wire and received an electric shock which threw him to the ground causing him to suffer certain described injuries. Attached to the petition is a contract between the defendant and the Georgia Power Company containing an agreement to indemnify the latter against payment of any sum of money to any person growing out of the operation of the traffic signals, which contract is not attached for the purpose of claiming any right under the contract but merely to show the circumstances under which the traffic signal was erected. Since this count is predicated on negligence in the performance of a governmental function, for which the city is not liable, the general demurrers to this count were properly sustained. Nothing to the contrary is held in the case of Mayor, etc., of City of Savannah v. Jones, 149 Ga. 139, 99 S.E. 294, which holds that while a city in the emptying of its trash cans is performing a governmental function it may also, by removing and placing the lid in such a maner as to obstruct the street, be negligent in its ministerial duty of keeping the sidewalks free from obstruction and be liable on this theory. 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.

2. (a) The remaining count of the petition, alleging the same factual situation, charges the defendant with creating and maintaining a nuisance. However, the factual averments show that the plaintiff's injury was caused because plaintiff 'came in contact with the conduit of the traffic signal and the fire alarm system both belonging to the City of Macon, the defendant. At that time and place unknown to the plaintiff, the conduit and control box of the traffic signal were not grounded, and the insulation on the 'hot' lead, i. e. the lead carrying high voltage electricity running from the traffic signal weather head had broken and separated for a distance of about one inch, leaving a bare section of wire, which bare section was approximately 1/16 inch from the weather head, causing the conduit to be energized by the electricity, thus causing the plaintiff to receive an electrical shock when he touched both conduits at the same time, sufficient to cause him to fall from the pole.' (Emphasis added.) It is alleged that the defendant is liable in damages under these facts for constructing and maintaining a nuisance. If so, of course, the municipal corporation, like any other tort-feasor, would be liable for damage resulting from the unisance, regardless of whether it was constructed and maintained in the exercise of a governmental function or not. Ingram v. City of Acworth, 90 Ga.App. 719, 720, 84 S.E.2d 99; Archer v. City of Austell, 68 Ga.App. 493, 497, 23 S.E.2d 512. But the allegation that the city constructed and maintained this condition is a mere conclusion in view of the allegation that the weather head 'broke and separated,' thus releasing the electricity, it being...