Stubbs v. City Of Macon, 32256.

• Decision Date: 04 December 1948
• Docket Number: No. 32256.,32256.
• Citation: 50 S.E.2d 866
• Parties: STUBBS . v. CITY OF MACON.
• Court: Georgia Court of Appeals

50 S.E.2d 866

STUBBS .

v.CITY OF MACON.

No. 32256.

Court of Appeals of Georgia, Division No. 2.

Dec. 4, 1948.

Error from City Court of Macon; Cecil A. Baldwin, Judge.

Personal injury action by Mrs. E. N. Stubbs against the City of Macon. Judgment for defendant and plaintiff brings error.

Affirmed.

The plaintiff in error, Mrs. E. N. Stubbs, hereinafter referred to as plaintiff, brought suit for damages in the City Court of Macon, against defendant in error, City of Macon, hereinafter referred to as the defendant.

The petition of the plaintiff alleges substantially that Third Street runs north and south; that from the east to the west side thereof is 134 feet in distance, 37 feet of which is paved for vehicular traffic on the west side and a like width of pavement is for vehicular traffic on the east side; that between these two paved areas there is a space of 60 feet which is operated by the defendant as a city park; that in the year 1947, agents of the defendant installed parking meters throughout the city including the area of Third Street adjacent to the park described in the petition; that the parking meters at this point were located inside the park in the center of a concrete strip 3 feet in width; that this strip of pavement was put down in connection with the location of the parking meters; that the city receives substantial revenue from the operation of the parking meters; that a metal water meter box was in the path of this pavement at a point in the park opposite the store of J. C. Penny Co.; that this meter box was not lowered to the level of the pavement but was "paved Around" so as to remain elevated a distance of approximately 7 inches above the level of the pavement at the highest point; that plaintiff, an employee of J. C. Penny Co. parked her car along the park in front of and opposite the store of J. C. Penny Co. headed north and alighted by way of the right hand door; that approximately 3 hours later she returned to her car by crossing a portion of Third Street, entering the park area and upon starting to get into her car by way of the left hand door, she stumbled over the water meter box causing her to fall; that she suffered serious injuries and incurred medical expense all of which is detailed in her petition.

The petition also alleges notice to the city in writing of the character of the complaint, and prays for process and judgment in the sum of $5,000.

The defendant interposed a general demurrer which upon hearing the trial judge sustained and this judgment is assigned as error.

The plaintiff contends that the acts on the part of the officers, agents and servants of the municipality, complained of in her petition, were ministerial, or if governmental amounted to the maintenance of such a nuisance as stated a cause of action on that theory.

John J. McCreary, of Macon, for plaintiff in error.

Chas. W. Walker and E. S. Sell, Jr., both of Macon, for defendant in error.

Syllabus Opinion by the Court

TOWNSEND, Judge.

1. Municipalities are liable for the acts of their officers, agents and servants only in instances as follows: (a) In the...