Brown v. Mayor of Milledgeville

93 S.E. 25, 20 Ga. App. 392, 1917 Ga. App. LEXIS 904

Opinion

George, J.

1. The general rule of law is that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by night as well as by day; and if it fail to do so, it is liable for damages for injuries' sustained in consequence of such failure. Mayor etc. of Atlanta v. Perdue, 53 Ga. 607, 608; Parker v. Macon, 39 Ga. 725 (99 Am. D. 486) ; Chapman v. Macon, 55 Ga. 566, 568.

2. A municipal corporation is liable for injuries caused by its neglect or omission to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes; and.it is also liable for such injuries caused by its neglect or omission to remedy defects in its public streets or sidewalks, occasioned by the wrongful acts of others. In the latter class of cases the foundation of the action is negligence in'failing to remedy the defect, and in the absence of actual knowledge the municipality is not. liable unless the defect occasioned by the wrongful act of another has existed for such a length of time as to charge the municipality with notice of its existence. See Mayor etc. of Atlanta v. Perdue, supra.

3. If the municipality, in the exercise of reasonable diligence in the performance of its duties, has the means of knowledge of defects in its sidewalk, occasioned by others, and negligently remains ignorant thereof, the municipality is constructively charged with knowledge thereof, and can not escape liability upon the ground that it did not have actual notice of such defect. Idlett v. Atlanta, 123 Ga. 821 (51 S. E. 709).

4. The petition in the instant case did not allege the particular length of time the open cellar in the city sidewalk had existed, but did aver that the grating or door to the cellar had been removed for a long period of time, and that the city, in the exercise of ordinary diligence, was constructively charged with notice of the open cellar in its sidewalk. The petition as amended set forth a cause of action against the defendant; and the judgment sustaining both general and special demurrers to the petition will be reversed, leaving the matters in respect to the special demurrers open for further action in the trial court. Chapman v. W. & A. R. Co., 8 Ga. App. 787, 789 (70 S. E. 208); Norwich Union Fire Ins. Soc. v. Bainbridge Grocery Co., 16 Ga. App. 432, 436 (85 S. E. 622).

Decided June 27, 1917.

Action for damages; from Baldwin superior court—Judge Henry C. Hammond presiding. January 10, 1917.

Sibley & Sibley, for plaintiff. Livingston Kenan, for defendant.

Judgment reversed.

Wade, G. J., and Luke, J., concur.