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STATE CONSTRUCTION CO. v. JOHNSON.
33292.
Damages; from Gordon Superior Court-- Judge Paschall. August 21, 1950.
FELTON, J.
A contractor working on public highways and bridges under contract with the State or one of its political subdivisions is not immune to liability for injuries caused by its negligence in the prosecution of the work contracted for and the court did not err in overruling the demurrers to the petition.
Lester W. Johnson sued State Construction Company for damages allegedly due to the negligence of the defendant. The amended petition alleged substantially: that, at all times mentioned in the petition, the defendant was a road contractor and was engaged in building and constructing a steel and concrete bridge over Oothcaloga Creek on State Route 53 just west of the western boundary of the City of Calhoun, under contract with the, State Highway Department; that State Route 53 is an, asphalt-paved highway, except for the approaches to the bridge under construction, and that said approaches were from two hundred to three hundred feet in length; that State Route 53 in the vicinity of said bridge under construction had recently been relocated and straightened; that said highway runs in a general northeasterly and southwesterly direction; that there is a deep fill on each side of Oothcaloga Creek, said fill providing the approach to the bridge under construction; that the work in relocating and straightening said highway had been done by J. C. Kay under a Contract with Gordon County and that said contract was completed in accordance with the terms thereof and the portion of said highway under construction was turned back to the control of and accepted by the State of Georgia; that at the time said highway was accepted by the State of Georgia and up to and until the defendant accepted control of that portion of the highway for the purpose of building and constructing the said bridge, there was a barricade, and signs, signals and warnings placed along and across said highway which had been relocated, warning users of said highway that the bridge over the relocated portion of said highway was out and directing them to use the old highway which turned back northwesterly and was down grade and much narrower than the relocated portion which was of the same width as other portions of said highway; that the old highway, being very narrow and turning sharply to the northwest and down grade, gave the impression to a person unfamiliar with same that it was a side road; that the defendant knew that the signs, signals and barricade were erected on each side of said creek a sufficient distance along the approaches to the bridge under construction to warn the public of said danger and the defendant further knew that said signs, signals and barricade had been blown down or knocked down and that there was no warning or signals to advise the public of the dangerous situation which was under the control of the defendant; that the plaintiff was a stranger in Gordon County and was not familiar with the said highway, nor was he apprised of the fact that the bridge was out and that the road was under Construction; that under said facts and on March 29, 1950, at about 11:45 p. m., the plaintiff was driving an automobile from Rome to Calhoun; that, as the plaintiff approached the portion of the said highway under construction from a westerly direction, and while driving at a rate of speed of about 50 miles per hour, he ran into the approach to the bridge which was out, and was thus
suddenly presented with the dangerous condition of the road; that having had no notice of the fact that the bridge was out and being unfamiliar with the physical surroundings, he suddenly saw that the bridge was out and that he was in a perilous situation; that in an effort to tuna to the left and get on the old road detour provided, which appeared to be the only thing to do under the circumstances, the plaintiff went off the fill and down a six to eight foot embankment, turning over before hitting the detour road north of and parallel with the approach to the bridge and landing in a pasture below, whereby the plaintiff was damaged as specified; that failure to erect signs, signals and a barricade across said relocated portion of said highway under the facts and circumstances related amounted to negligence proximately causing the injuries and damage to the plaintiff; that the defendant was guilty of negligence in particular in failing to place signs, signals and warnings along the southern side of the said highway facing west warning the plaintiff and other users of said highway of the fact that a bridge was out and that the road was under construction, in failing to place signs, signals and warnings along the south side of said highway facing west so as to warn the plaintiff and other users of said highway of the detour which was not as wide or as large as the approach to the bridge that was out and in failing to maintain a barricade across the approach to the bridge that was out and thus warning the plaintiff and other users of the highway of the dangerous condition of the highway. Upon amendment, the defendant renewed its original demurrers to the petition and demurrers to the petition as amended. The court overruled certain of the demurrers to the amended petition which were general in nature and went to the merits of the petition, and the defendant excepts.
The plaintiff in error contends that because it was constructing the bridge under contract with the State, it had governmental immunity to tort actions arising against it in connection with such construction. There is no such rule in Georgia. A contractor working on public highways and bridges of the State under contract with the State of a political sub-
App.] SEPTEMBER TERM, 1950 701division thereof is not immune to liability for injuries caused by its negligence in the prosecution of the work contracted for. Davis v. Smiley, 33 Ga. App. 508 (126 S. E. 904); Arnold, Estes & Co. v. Henry County, 81 Ga. 730 (8 S. E. 606); 43 Am. Jur. 825, 82; 40 C. J. S. 288, 252 (b). And the prevailing rule is against such immunity. 69 A. L. R., 492, III, a. A contractor constructing a road or bridge owes a duty to the public to exercise ordinary care to protect it from injuries arising by reason of such construction. Davis v. Smiley, supra; Doby v. W. L. Florence Construction Co., 71 App. 888 (32 S. E. 2d, 527); 104 A. L. R. 956, I, a; 7 A. L. R. 1203, I; 43 Am. Jur. 827, 82. A motorist upon the public highways of this State has a right to assume that the road ahead of him is clear. Mathis v. Nelson, 79 Ga. App. 639, 642 (54 S. E. 2d, 710). The plaintiff in error relies upon the case of Warren County v. Battle, 48 Ga. App. 240 (172 S. E. 673), to support its contention that failure to erect signs or other warnings informing travelers of the defective condition of a bridge cannot be accounted negligence. Such ruling relates to counties and not to private individuals or corporations. "Since a county is not liable to suit unless made so by statute . . . and since the liability of a county for injuries caused by reason of a defective bridge upon a highway arises only under the statute which provides that a county shall be liable 'for all injuries caused by reason of any defective bridges' . . . a county is liable to a person injured by reason of a defective bridge only when the county has failed to exercise ordinary care in performing this statutory duty to keep the bridge in repair, and not by reason of any negligent failure to post signs or other warnings informing travelers of the defective condition of the bridge. [citations]." Wilkes County v. Tankersley, 29 Ga. App. 624 (116 S. E. 212).
The petition alleged injuries due to a breach of a duty owed the plaintiff by the defendant to warn of the dangerous condition of the bridge, and stated a good cause of action.
The contention that the original petition did not contain enough to amend by is without merit.
The court did not err in overruling the demurrers.
R. F. Chance, contra.
Y. A. Henderson, for plaintiff in error.
DECIDED DECEMBER 1, 1950.
Saturday May 23 06:18 EDT


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