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Damages. Before Judge Anderson. Richmond Superior Court. October 8, 1953.
Whether the defendant city was negligent in maintaining a depression in the pavement of a street next to the sidewalk, as a result of which the plaintiff sustained injuries, was a question which should have been submitted to the jury, and the court erred in directing a verdict for the defendant.
It was alleged that the depression was about one foot deep, and two feet by three feet across; that it was dangerous, with no barrier to warn or protect pedestrians; that the depression had been there for at least four years; that the defendant was negligent in failing to repair the sidewalk or to put up warnings or barriers to protect the plaintiff; that the plaintiff sustained a broken ankle as a direct and proximate result of the defendant's negligence; and that timely notice of the claim had been given to the city.
The evidence was not in conflict, and established the following facts: At 6:30 p. m. on November 5, 1952, the plaintiff walked across the sidewalk on Ellis Street from the door of a grocery to his car, which was parked at the curb. It was dark, and there were no lights. He stepped from the curb into a depression in the pavement which he did not see, and broke his ankle. The depression in the pavement extended about three feet from the curb; its deepest point was about twelve inches below the top of the curb, while the surrounding pavement was only six inches below the top of the curb. The depression was made with a trowel when the concrete pavement was laid, so that storm water would enter an opening in the under side of the granite curb and flow into a sewer behind the curb. The upper part of the opening in the side of the curb was at street level, six inches below the top of the curb. Normally, the openings in the side of the curb were six inches deep with the top of the opening four inches below the top of the curb.
The opening in the curb could not be seen from the store entrance, but the beginning of the depressed area, leading from the pavement down into the opening in the side of the curb, could possibly be seen from that point. The sidewalk extended twelve feet from the store building to the curb. Automobiles that were being parked parallel to the curb often scraped their bumpers or running-boards against the curb as a wheel went into the depression.
At the conclusion of the evidence, the court on motion directed a verdict for the defendant, on the ground that the city was not liable because it was in the exercise of a governmental function. Error is assigned on this judgment, on the grounds that the evidence did not demand a verdict for the defendant, presented issues of fact which should have been submitted to the jury, and was sufficient to have authorized a verdict for the plaintiff.
It is contended that this case is controlled by the following ruling in City of Atlanta v. Key, 42 Ga. App. 214 (155 S. E. 499): "The maintenarrce of a sewerage-drainage system of a municipality in a good working and sanitary condition is a governmental function (City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S. E. 345), and the city is not liable for personal injuries to one who stepped into a basin-like depression in the pavement on a street, where the depression was made and maintained by the city for the purpose of forming a catch-basin to carry surface water into one of its sewers, and where the catch-basin or depression was a part of the general engineering plan of the city's sewerage-drainage system, and where the depression did not cause any dangerous defect or obstruction in the street or adjacent sidewalks." (Emphasis supplied.) In that case, two judges, constituting a majority of the division of this court which decided the case, were of the opinion that the pleader's conclusion--that the catch-basin made the street unsafe and dangerous for persons using it in the usual and ordinary modes of travel--was not supported by the facts alleged. The dissenting judge thought that it was sufficiently pleaded that the catch-basin caused a dangerous defect and an unnecessary obstruction in the street. From the record in that case, it appears that the facts there alleged are almost identical with those in the present case. The depression there described was in the form of a basin, some 12 or 14 inches in depth, semicircular in shape, and extending from the curb 20 or 30 inches into the street, with sides so steep that a person could not stand upon them. The law is correctly stated in the opinion, but the application of the law to the facts was erroneous. In that case, as in the present case, the question of whether the depression or catch-basin was a dangerous obstruction in the street should have been submitted to a jury.
A municipality is bound to use ordinary care to keep its public streets and sidewalks, which are open for public use, in a safe condition for travel in the ordinary modes, by night as well as by day, and in case of failure to exercise such care, the city is liable for damages resulting therefrom. City of Atlanta v. Perdue, 53 Ga. 607; Mayor &c. of Milledgeville v. Cooley, 55 Ga. 17; Herrington v. Mayor &c. of Macon, 125 Ga. 58 (54 S. E. 71). Proper construction or reconstruction is within the scope of the city's duty to keep a street, bridge, or sidewalk reasonably safe. City of Atlanta v. Buchanan, 76 Ga. 585; Town of Belton v. Vinton, 73 Ga. 99; Bellamy v. City of Atlanta, 75 Ga. 167. "The streets should be so graded as to render them reasonably safe for travel. . . One object of good streets and roads is to protect against accidents. The street should be reasonably safe for ordinary travel, including such accidents as might, without fault on the part of the traveler, befall him." Wilson v. City of Atlanta, 60 Ga. 473. Also see Williams v. Mayor &c. of Washington, 142 Ga. 281 (82 S. E. 659, L. R. A. 1915A, 325, Ann. Cas. 1916B, 196).
There have been numerous cases dealing with obstructions in a street resulting from a city's exercise of its governmental functions, such as: an open sewer in the middle of a street (Massey v. Mayor &c. of Columbus, 75 Ga. 658); an unguarded fire plug projecting six inches above a sidewalk (McFarland v. City of McCaysville, 39 Ga. App. 739, 148 S. E. 421); a grate over a sidewalk, which was insecurely propped up while a drain was being cleaned (City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S. E. 345; s. c., 23 Ga. App. 522, 98 S. E. 738); an open eye of a sewer near a sidewalk (City of Columbus v. Ogletree, 96 Ga. 177, 22 S. E. 709); a trash-box lid extending over a sidewalk (Mayor &c. of Savannah v. Jones, 149 Ga. 139, 99 S. E. 294); and unguarded ditches at a slippery intersection (City of Milledgeville v. Holloway, 32 Ga. App. 734, 124 S. E. 802). The ruling to be derived from these cases is that, after the exercise of a governmental function has ended, the ministerial duty of keeping streets and sidewalks free from obstructions becomes obligatory, and also that the latter duty includes guarding or warning against the obstructions erected or maintained by a city in the exercise of its governmental functions.
As stated in City Council of Augusta v. Tharpe, 113 Ga. 152 (38 S. E. 389): "After all, whether any given obstruction on or near a sidewalk is dangerous, and whether a failure to remove it [or, we add, to place barriers or warnings about it] would constitute negligence on the part of the city, are questions of fact which the jury must determine." Also see City of Columbus v. Ogletree, supra; City of Greensboro v. Robinson, 19 Ga. App. 199 (91 S. E. 244); City of Rome v. Hanson, 58 Ga. App. 617 (199 S. E. 329); McFarland v. City of McCaysville, supra. The cases of City Council of Augusta v. Little, 115 Ga. 124 (41 S. E. 238), and Smith v. City of Atlanta, 21 Ga. App. 172 (93 S. E. 1022), are distinguishable from the present case, for in these cases it was not shown that the city was chargeable with knowledge of the dangerous obstruction as claimed.
City of Atlanta v. Key, supra, decided by two judges, is not in accord with the precedents of this court and of the Supreme Court, has not been followed in the past, and so need not be and is not followed now. The court erred in directing a verdict for the defendant municipality.
Judgment reversed. Felton, C. J., and Quillian, J., concur.
Fulcher, Fulcher & Hagler, contra.
Mixon & Chambers, for plaintiff in error.
Saturday May 23 03:39 EDT

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