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Lawskills.com Georgia Caselaw
MAYOR etc. OF SAVANNAH v. PALEFSKY.
35417.
Action for damages. Before Judge Heery. Savannah City Court. August 19, 1954.
NICHOLS, J.
This petition, alleging that the plaintiff was injured because of the negligence of the city in not keeping its streets and sidewalks in a reasonably safe condition, set forth a cause of action as against a general demurrer.
Mrs. Lillie Palefsky brought suit in the City Court of Savannah against the Mayor and Aldermen of the City of Savannah for injuries received when she stumbled on a sunken water-meter box.
The petition as finally amended shows: The defendant is a municipal corporation under the laws of Georgia and is the governing authority of the City of Savannah, Georgia. The plaintiff was injured when at about 9:30 p.m. on June 4, 1953, she stumbled and fell to the ground on a recessed and sunken water-meter box located in front of the premises of 1316 East Fifty-first Street, Savannah, Georgia. The fall resulted in the plaintiff sustaining a fractured left humerus. She was hospitalized from June 4 to June 11, 1953, and has since undergone medical treatment as well as treatment by a physical therapist for the injured shoulder or humerus. She has suffered severe mental and physical pain by reason of such injury, and has incurred expenses totaling $932.65 in connection with treatment for the injury.
The plaintiff was a widow at the time of the injury and has continued a widow since. The water-meter box was located on the right-of-way of that street known in Savannah as Fifty-first Street between Cedar and Ash Streets. The right-of-way is 60 feet wide and runs in an eastwardly and westwardly direction. The paved portion of the street is 30 feet wide and located in the center of the right-of-way, bounded by a curb on each side. On either side of the curb is a strip of land approximately 5 feet wide bounded on the side away from the paved portion of the street by a paved sidewalk approximately 5 feet wide. The sidewalk is bounded on the side away from the paved portion of the street by another strip of land approximately 5 feet wide, which adjoins property privately owned. The unpaved strips between the sidewalks and the street have at all times been used by pedestrians in moving between the sidewalks and the street and have been so used for more than ten years preceding the filing of the petition. At the time of the plaintiff's injury, she was walking from the sidewalk on the north side of Fifty-first Street toward the street. The water-meter box was approximately 19 inches long by 12 inches wide, and the top or lid was below the level of the surrounding land. The sunken water-meter box was not lighted, nor was there any other warning to put the public on notice that it was so recessed and sunken. At the time of the injury, it was dark and the water-meter box was not visible to the plaintiff, and she did not know that it was there. The water-meter box was part of the installation furnishing water to that property known as 1316 East Fifty-first Street, which is a residence. The defendant at the time of the injury was charging for water furnished, the amount of water used being measured by the water meter housed in the water-meter box over which the plaintiff stumbled. The defendant at the time of the injury owned and operated, and now owns and operates, a system of waterworks for furnishing water to the residents of the City of Savannah. The water-meter box causing the injury to the plaintiff was in the exclusive control of the defendant and was a part of the system furnishing water to residents of the City of Savannah. For at least two years prior to the injury, the water-meter box had been in a sunken or recessed condition, this being unknown to the plaintiff. The injury to the plaintiff has resulted in great physical pain and suffering to her, and she cannot, without severe physical pain, raise her left arm above her shoulder.
Her injury was a proximate result of negligence by the defendant in the following particulars: (a) in failing to remedy the recessed and sunken condition of the water-meter box; (b) in allowing the recessed and sunken water-meter box to continue in that condition; (c) in failing to light such recessed and sunken water-meter box at night; (d) in failing to post a warning sign or other signal to give warning of such recessed and sunken water-meter box; (e) in failing to give warning or notice of such recessed and sunken water-meter box. The plaintiff notified the defendant in writing of her injuries, the negligence causing such injuries, and the cost and damages claimed by her, and of the time, place, and extent of such injuries, and the defendant has failed and refused to pay or settle such claim. A copy of the notice is attached as an exhibit to the petition. The plaintiff lays her damages for said injury and for the mental and physical pain at $12,000. She prayed for process and judgment against the defendant for $12,932.65.
The defendant filed a general demurrer on the grounds that the petition set forth no cause of action; that, if any negligence was shown, it was the negligence of the Park and Tree Commission, an independent agency created by the legislature and not by the defendant; and that the negligence was due to a governmental function of the municipality, and no legal liability lies. Special demurrers were also filed. The demurrers were overruled, and the defendant excepted.
The defendant in the court below contends that no cause of action is stated against it because, by an act of 1895, the General Assembly vested exclusive jurisdiction over trees, parks, grass plats, etc., within the City of Savannah in the Park and Tree Commission, an independent agency. This act does not relieve the city of the duty to keep its sidewalks in a reasonably safe condition. Mayor &c. of Savannah v. Harvey, 87 Ga. App. 122 (73 S. E. 2d 260). In that case it was alleged that the city was negligent in not removing rotten limbs from a tree which was growing in the unpaved area between the sidewalk and the street. In the present case it is alleged that the city was negligent in allowing a water-meter box to be located lower than the surrounding ground in that unpaved area between the sidewalk and the street, that this area was used and had been used for at least ten years by the public, and that the water-meter box had been lower than the surrounding land for a period of at least two years prior to the injury of the plaintiff. The record does not disclose whether the unpaved area between the sidewalk and the street in the present case is part of a park. Mayor &c. of Savannah v. Harvey, supra. In the present case it is alleged that the water-meter box was under the exclusive control of the city, and was used as a part of the installation furnishing water to the residence located at 1316 East Fifty-first Street. A city, in maintaining a waterworks system and furnishing its residents with water for domestic and commercial purposes, and charging therefor, is engaged in a private, nongovernmental business, and is liable to one injured because of its negligence. City of Tallapoosa v. Goebel, 63 Ga. App. 1 (10 S. E. 2d 201); Atlanta v. Blackmon, 51 Ga. App. 165 (179 S. E. 842). As against a general demurrer the petition set forth a cause of action.
The exceptions to the overruling of special demurrers not being argued or expressly insisted upon, will be treated as being abandoned. Mayor &c. of Savannah v. Harvey, supra.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
Rogers, Zeigler, Terry & Coolidge, Lewis, Wylly & Javetz, contra.
Aaron Kravitch, James F. Glass, for plaintiff in error.
DECIDED JANUARY 25, 1955.
Saturday May 23 03:06 EDT


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