Warren County v. Battle
| Decision Date | 17 January 1934 |
| Docket Number | 22979. |
| Citation | 172 S.E. 673,48 Ga.App. 240 |
| Parties | WARREN COUNTY v. BATTLE. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
County authorities are not insurers of safety of county bridges, but are only bound to exercise ordinary care in maintaining and repairing such bridges (Civ. Code 1910, § 748).
"Bridge," within statute making county liable for injuries caused by defective "bridges," does not include public road leading to bridge, or drain or opening thereunder, but includes all appurtenances necessary to proper use of bridge and abutments and approaches (Civ. Code 1910, § 748).
Petition against county for damages sustained when truck fell through opening where bridge had been held not demurrable on theory that injury was caused by entire removal of "bridge," not by "defective bridge," where petition showed that sills constituting portion of approaches remained, and that remainder of bridge was being repaired (Civ. Code 1910, § 748).
Traveler though knowing there is some danger in driving over defective bridge, may recover for injuries, if exercising due care unless danger was obvious (Civ. Code 1910, § 748).
Duty to avoid consequences of another's negligence after it becomes apparent is only duty to exercise ordinary care to prevent consequences of such negligence.
Injured person's failure to exercise ordinary care before negligence complained of was apparent or should have been reasonably apprehended will not preclude recovery, but will authorize jury to diminish damages in proportion to fault attributable to person injured (Civ. Code 1910, § 4426).
Questions of diligence, negligence, contributory negligence, and comparative negligence are for jury.
Absence of warning of defective condition of bridge may be considered in determining whether person approaching bridge exercised due care, although not itself negligence (Civ. Code 1910, § 748).
Charge predicating recovery for injuries because of alleged defective bridge upon finding that county was negligent in manner stated in petition held proper notwithstanding petition charged specifications of negligence in the conjunctive (Civ. Code 1910, § 748).
In suit for injuries from defective bridge, allegations as to absence of warning signs and presence of trucks left parked by roadway did not render petition bad, but were relevant on questions of contributory and comparative negligence (Civ. Code 1910, §§ 748, 4426).
Error from Superior Court, Warren County; C.J. Perryman, Judge.
Suit by J. H. Battle against Warren County. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.
Affirmed.
E. P. & J. Cecil Davis, of Warrenton, for plaintiff in error.
M. L. Felts, of Warrenton, and Miles W. Lewis, of Greensboro, for defendant in error.
1. Although "a county is not liable to suit for any cause of action unless made so by statute," expressly or impliedly (Civil Code 1910, § 384; Millwood v. De Kalb County, 106 Ga. 743, 32 S.E. 577), since the act of December 29, 1888, a county is "primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities" (Civil Code, § 748 [Ga. L. 1888, p. 39]; Hackney v. Coweta County, 117 Ga. 327, 328, 43 S.E. 725).
2. "County authorities are not insurers of the safety of county bridges, but are only bound to exercise ordinary care in maintaining and repairing them." Warren County v. Evans, 118 Ga. 200 (2), 201, 44 S.E. 986; County of Tattnall v. Newton, 112 Ga. 779, 781, 38 S.E. 47; Early County v. Fain, 2 Ga.App. 288 (2), 58 S.E. 528; Stamps v. Newton County, 8 Ga.App. 229 (5), 68 S.E. 947.
3. While the word "bridge," as used in section 748 of the Civil Code, does not include the public road leading thereto, or a drain or opening thereunder, it does include Howington v. Madison County, 126 Ga. 699 (1), 700, 55 S.E. 941; Mitchell County v. Dixon, 20 Ga.App. 21 (3), 28, 92 S.E. 405; Nicholson v. Jackson County, 20 Ga.App. 394 (2), 93 S.E. 30; Ellis v. Floyd County, 24 Ga.App. 717 (3), 102 S.E. 181; Windom v. Colquitt County, 37 Ga.App. 98, 139 S.E. 158. Accordingly, in the instant action against a county for damages from the falling of an automobile truck through an opening, where a public bridge had been, into a branch or ravine below, the petition was not demurrable, and the verdict for the plaintiff cannot be deemed contrary to law or without evidence to support it, under the defendant's contention that the injury was not caused by reason of a "defective bridge" within the meaning of the statute, but resulted from the entire removal of the bridge, for which the county was not liable, since (without determining the soundness of such legal contention under the county's duty of maintenance if the bridge in fact had been wholly removed) the petition and the evidence showed that at the time of the injury at least a part of the bridge, to the extent of the sills leading thereto and constituting a portion of its "approaches," still remained, and the rest of the bridge was then in process of reconstruction or repair.
4. "A traveler on the public highway, exercising due care although he knows there is some danger in driving over a defective bridge, may recover for injuries thus sustained, unless the danger is obviously of such a character that driving over the bridge, in and of itself, amounts to a want of ordinary care." Elbert County v. Threlkeld, 145 Ga. 133 (1), 88 S.E. 683; Lincoln County v. Gazzaway, 43 Ga.App. 358 (2), 158 S.E. 647. "The duty resting upon a person to avoid the consequences of another's negligence after it becomes apparent is not absolute, but is only a duty to exercise ordinary care to prevent the consequences of such negligence." Hamrick v. Haralson County, 41 Ga.App. 203 (3), 152 S.E. 581, 582. Under the rule of comparative negligence in section 4426 of the Civil Code, "failure to exercise ordinary care on the part of the person injured before the negligence complained of is apparent or should have been reasonably apprehended will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured." Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (1, 2), 39 S.E. 306, 54...
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