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Action for damages. Hall Superior Court. Before Judge Kelley.
CUSTER, Judge.
1. It was error to direct a verdict for the defendant on the theory that the municipality was not liable because the street was being improved by the State Highway Department as a part of the State-aid Road System. The statute in effect at the time of the fatal injury here involved did not relieve the city of the duty of maintaining its streets in a reasonably safe condition.
2. Where construction is in progress on a road which is also a city street, whether it is open for travel so as to extend to the public an implied invitation to use it and whether one so using it is in the exercise of ordinary care for his own safety, are questions for the jury.
3. Evidence as to contracts between the State Highway Department and the county under which much work is proceeding is admissible under proper instructions.
Audrey Bush brought an action in the Superior Court of Hall County against the City of Gainesville for the death of her husband alleging that a certain public street and highway, Thompson Bridge Road, was located within the corporate limits of the defendant, which had a ministerial duty to exercise ordinary care in keeping the same in a reasonably safe condition for travel; that on May 23rd, 1958, and for a long time prior thereto, the city had negligently permitted the road to be in an unsafe condition with dangerous ruts, holes, and depressions; that the decedent was driving a gasoline tank truck loaded with gasoline when the truck hit a hole, causing it to turn over and catch fire, as a result of which decedent was burned to death, and that proper claim had been filed with and denied by the governing body of the defendant.
Upon the trial of the case, there was proof that the injury happened as alleged upon a road within the city limits of the defendant municipality at a place where paving ended and large ruts and holes caused a rough drop-off from the pavement which had existed for some time and was known to officers of the city; that the road was a dirt road from about 1,700 feet north of Thompson Bridge, which had been rebuilt by the U. S. Corps of Engineers where the injury occurred; that the old Thompson Bridge Road was a black-top road and the portion of the road in question consisted in part of 1.022 miles of new grading and base which crossed the old road at or near the beginning of the construction, crossed again about midway, and tied back into the original road at the end of the construction; that there were detour signs, but these detour signs meant for traffic to take the road under construction rather than the old road; that the purpose of the mile of new construction was to straighten out the bends and curves in Thompson Bridge Road; that deeds to the right-of-way involved had been made to Hall County prior to 1956 when the city annexed the area and the State Highway Department did the construction; that the road construction signs erected by Hall County were removed in December, 1957; that the road base was put down in March and April, 1958, and from then on the road was continuously used and no work was going on in May, 1958, when the injury occurred, and that the asphalt was placed on the road in July and the entire project accepted in June, 1959.
It appears from the evidence that after the acquisition of the new area on the north side of the City of Gainesville, the municipal authorities did not concern themselves with the maintenance of the road, although they did come in to move utility poles and lines in the area. The U.S. Corps of Engineers had constructed the new bridge, but when this occurred does not appear, and they had black-topped the road north of the bridge a distance of about 1,700 feet, not following the old Thompson Bridge Road, but crossing it. Whether the end of this paving tied in with the old road, or stopped about 150 yards away from it, is the subject of conflicting testimony. The mile of construction done by the State Highway Department began at the end of the pavement put in by the Engineers Corps and ended by tying in with the old Thompson Bridge Road, crossed the old road, and straightened it out. The decedent's vehicle overturned at the north end of the paving coming north from the bridge, at the beginning point of the construction work. At the time it occurred this was the only Thompson Bridge Road; it was within the city, and it was a city street. Although shortened and straightened in part by new construction, it is the same Thompson Bridge Road which had existed for many years and still continues to exist.
At the conclusion of the evidence, a motion for a directed verdict was made and granted on the sole ground that the City of Gainesville had nothing to do with the construction and maintenance of the road in question. To this judgment the plaintiff excepts.
1. Thompson Bridge Road, connecting Gainesville and Dahlonega, was made a part of the State-aid Road System from the then existing city limits of Gainesville north to Lumpkin County by Ga. L. 1937, p. 1008. By Ga. L. 1956, p. 2847, the municipal limits of Gainesville were extended to include an area to the north which took into the city that portion of Thompson Bridge Road on which the State Highway Department was making improvements and on which the fatal injury occurred.
Under Code 69-303 municipalities generally have a ministerial duty to keep their streets in repair, and they are liable for injuries resulting from defects after actual notice, or after the defect has existed for a sufficient length of time for notice to be inferred. "A street is a road or public way in a city, town, or village, laid out and opened for travel by the public." Robins v. McGehee, 127 Ga. 431 (1) (56 SE 461). "Where territory is lawfully annexed to a city, the new area becomes 'a part of the city for all municipal purposes', and the public highways therein become streets of the city, and the city becomes chargeable with the duty of using reasonable diligence in seeing that they are placed and kept in such condition as will make passage thereon reasonably safe. As to defects existing in the highway at the time of the annexation, the city does not become chargeable with liability until it has discovered them, or, in the exercise of ordinary and reasonable diligence, should have discovered them, and until it has then had a reasonable opportunity to remedy them." Mayor &c. of Macon v. Morris, 10 Ga. App. 298 (2) (73 SE 539); Georgia Ry. &c. Co. v. Tompkins, 138 Ga. 596 (75 SE 664). The general rule is that, when a municipal corporation is created, or its boundaries extended, it becomes vested with jurisdiction over all the territory within its limits, and the mere fact that valuable improvements have been made by the county does not oust the city from jurisdiction. Almand v. Atlanta Consolidated St. Ry. Co., 108 Ga. 417 (2), 426 (34 SE 6); Marshall v. County of Floyd, 145 Ga. 112, 119 (88 SE 943); Wood v. Shore, 160 Ga. 173 (1) (127 SE 145). A city, under proper charter authority, may change the course of a street in order to shorten and improve it, the termini remaining the same. Adair v. Spellman Seminary, 13 Ga. App. 600 (5), (79 SE 589); City of Statesboro v. Dorman, 203 Ga. 25 (5b) (45 SE2d 403).
It follows that unless the mere facts that legal title in the land was in the county and that the road was a part of the State-aid Road System remove this thoroughfare from the general rule, the city is liable for the defect in the street if it had sufficient notice thereof. On the question of notice there was ample evidence to take the case to the jury. As to the effect on the city's liability of the fact that paving was being done by the State Highway Department in connection with an alteration in and straightening out of the road (the termini remaining the same), this question is settled adversely to the defendant by Ga. L. 1937, p. 1081 et seq., expressly providing for the inclusion of streets in municipalities within the State-aid Road System, and further providing, in Code 95-1729: "Nothing [herein] shall be construed as relieving the several municipalities of the State of the duty of maintaining their streets in a reasonably safe condition." This Code section was in effect in 1958 when the injury occurred, although under Ga. L. 1961, pp. 469, 471, Code 95-1729 was repealed and a new Code 95-1741 was added, expressly relieving municipalities from liability for defects resulting from the failure of the State Highway Board to maintain portions of the State-aid system of roads lying within the corporate limits of any municipality which it is said Board's responsibility to maintain. When the municipality acquired the area to its north it acquired the streets therein, and the fact that a part of one of the streets was also a part of the State Highway System and was under construction by the State Highway Department did not relieve the city of its duty to see that it was properly maintained for traffic after it became the only Thompson Bridge Road open for traffic; that is, after it became impossible to use the segment of road existing when the city acquired it because of the substitution of the portion under construction for the portion previously used. We hold that under these circumstances the city street continues its identity as such and is not merely a new road.
It is true, as contended by the defendant, that Code 95-1726, a part of the act of 1937 amending State-Aid Road System law as contained in Code Chapter 95-17, provides that streets within municipalities shall be a part of the system "for the purposes of construction and maintenance thereof by the State Highway Board from State highway funds allocated to such Board for the construction and maintenance of roads in this State," but, as pointed out above, this shall not relieve municipalities of the duty to maintain their streets, although the State Highway Department is chargeable with the cost. Municipalities, being governmental subdivisions, are chargeable with the duty of maintaining their streets in a safe condition only to the extent the statute law makes them so, for they were immune at common law, and the liability may or may not exist, and may or may not be predicated upon negligence or notice, as the law directs, but where the municipality is under such statutory duty to maintain a street it cannot escape liability for failure to do so by reason of the failure of another political agency or third party also charged with the duty of keeping it in repair. 40 C. J.S. 280, Highways, 250.
It follows that the trial court erred in granting the motion for a directed verdict on the theory that the city had no duty to maintain this portion of its street system.
2. There was also undisputed evidence in the record that the road was being heavily traveled, and that the road traveled was "Thompson Bridge Road"; that is, that the portion of the old roadway which was being straightened out had been cut off from the road by ditches and could not be used, so that the route taken by the plaintiff's husband was the only possible route. Where construction is in progress on a road, the question of whether or not it is in fact open for travel in such manner that an implied invitation to use it has been extended to the public, as well as the question of whether one using such a road is in the exercise of ordinary care for his own safety, is for the jury. Powell v. Barker, 96 Ga. App. 592 (3) (101 SE2d 113).
3. It was not error to admit evidence regarding the contracts between the county and the State Highway Department under which the work was proceeding, as this evidence was proper to explain the physical changes being made in the road, but on another trial the court should restrict the evidence to this purpose, and charge the jury in such manner that they will understand that this evidence, in and of itself, does not relieve the city of its duty to maintain its streets in such manner that travelers are not injured as a result of defects in their condition. Other evidence in the record pertinent to this issue consists of testimony that, although the road had not been completed in its entirety and accepted by the State Highway Department. For some time prior to the injury and while the road was open to unrestricted traffic the Department was doing no work at all upon it, but was waiting for the road base to settle before going back to apply the asphalt topcoating.
The trial court erred in directing a verdict in favor of the defendant.
Judgment reversed. Carlisle, P. J., and Eberhardt, J., concur.
Kenyon, Kenyon & Gunter, contra.
Whelchel, Dunlap & Gignilliat, William P. Whelchel, for plaintiff in error.
Friday May 22 22:43 EDT

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