The petition, alleging negligence on the part of the city in failing to place a warning or barrier around a defective part of a street, is sufficient to withstand a general demurrer.

Henry Battle sued the City of Macon for damages allegedly sustained by reason of a defect in a city street. The amended petition in part alleged: that on August 28, 1949, the plaintiff owned and was driving his 1937 Buick automobile in a southerly direction on Lexington Street in the City of Macon, and while driving on said street, the plaintiff's automobile ran into a hole and exposed sewer pipe; that at the time his automobile ran into the hole and exposed sewer pipe it was approximately 11 o'clock a.m., and that it was raining with an overcast sky; that the said hole and exposed sewer pipe was caused "by dirt washing away from over and around said sewer pipe and due to the fact that it was raining and the hole was filled with water plaintiff was unable to see said hole or exposed sewer pipe"; that the City of Macon "knew or should have known of the existence of this sewer pipe and the said city knew or should have known that the dirt covering the said pipe had washed away or would wash away and that by reason of this knowledge, the City of Macon was negligent in failing to provide a warning or barrier to protect petitioner and other street travelers"; that the plaintiff was driving his automobile at a speed of approximately 20 miles per hour; that he was Using due care and could not have discovered or known of the existence of the hole and sewer by the use of ordinary care; that the defendant's negligence in failing to erect a warning or barrier was the cause of the plaintiff's automobile striking the hole and sewer pipe; that a claim had been presented to the City of Macon and had not been acted upon within 30 days of its presentment. The defendant filed general demurrers alleging that no cause of action is stated and that the proximate cause of the injuries was the negligence of the plaintiff in not exercising due care to discover and avoid the defect in the street. The court sustained the general demurrer alleging no cause of action and dismissed the petition, and the plaintiff excepts.

1. The defendant in error contends that the petition does not state sufficient facts to show notice of the defect to the city and that therefore no cause of action is stated. This contention is based on Code 69-303. We do not agree with the defendant in error that this Code provision requires an allegation in the petition of how long the defect had existed if constructive or implied notice is relied up on. This provision is a mere codification of the holding in the case of Mayor &c. of Montezuma v. Wilson, 82 Ga. 206 (9 S. E. 17), and must be construed in the light of the facts and holdings in that case. The court there held that the verdict of the jury rendered in the trial of the case was contrary to the evidence, in that the defective sewer which caused the plaintiff's injuries had been inspected on the day the plaintiff sustained his injuries and that no defect existed then. The court said: "A municipal corporation cannot be held liable for damages occurring by reason of a defect in its streets, sidewalks, sewers or bridges, when it has no notice thereof, or when such defect has not existed for a sufficient length of time from which notice can be inferred, provided the corporation has been guilty of no negligence in constructing or repairing the same . . . According to the testimony in this case, this defect was of such a recent origin that the officers of the town government could not possibly have had notice of it." There is nothing in that case to sustain the contention that the elements establishing implied or constructive notice have to be alleged in the pleading. It deals merely with the proof of implied notice. Plaintiff's allegation that the city "knew or should have known" is an allegation of implied notice (Babcock Lumber Co. v. Johnson, 120 Ga. 1030 (6), 48 S. E. 438; Thomas v. Georgia Granite Co., 140 Ga. 460, 79 S. E. 130); and to make out a case he must, in the absence of actual notice, prove such implied notice, but he need not plead the facts by which he in tends to prove such implied notice. The petition contained a general allegation of negligence of the city and such general allegation of negligence is sufficient against a general demurrer. Russell v. Central of Georgia Ry. Co., 119 Ga. 705 (46 S. E. 858); Milton v. Mitchell County Elec. Membership Assn., 64 Ga. App. 63 (12 S. E. 2d, 367); Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (50 S. E. 974).

2. The defendant in error further contends that the plaintiff's allegation "that the said hole and exposed sewer pipe was caused by dirt washing away from over and around said sewer pipe and due to the fact that it was raining and the hole was filled with water plaintiff was unable to see said hole or exposed sewer pipe," shows that the defect in the street was created during the rain in which the injury occurred and that, therefore, the city could not have had implied notice of such defect in time to protect the plaintiff therefrom. We do not agree with such contention. This allegation is contained in an amendment of the petition in response to a demurrer by the city setting up the plaintiff's own negligence in not discovering the hole and exposed sewer pipe as the proximate cause of the plaintiff's injuries, and while the allegation may not be in the best rhetorical form, the only reasonable interpretation or construction that can be given it is not that the immediate rain in which the injuries occurred caused the defect in the street but that due to such rain and the filling up of the hole with rain water the plaintiff was unable to see the hole or pipe.

We are not concerned with the special demurrers as no ruling was made thereon.

The court erred in sustaining the general demurrer to the petition and in dismissing the action.