City of Warrenton v. Smith

Court of Appeals of Georgia

City of Warrenton v. Smith

98 S.E. 91, 23 Ga. App. 241, 1919 Ga. App. LEXIS 58

CourtCourt of Appeals of Georgia

DecidedJanuary 15, 1919

Docket9698

StatusPublished

This text of 98 S.E. 91 (City of Warrenton v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Warrenton v. Smith, 98 S.E. 91, 23 Ga. App. 241, 1919 Ga. App. LEXIS 58 (Ga. Ct. App. 1919).

Pincite

Opinion

Luke, J.

C. M. Smith Jr., by next friend, C. M. Smith Sr., brought suit for damages against the City of Warrenton, alleging in substance that the plaintiff, who was four years of age, was injured in that city, in the court-house square belonging to the county, by the fall of an iron shaft, round in shape, two inches in diameter, and about twenty feet long, one end of which was lying on a slab at the edge of the court-house steps, and the other on a pier made of brick, covered with cement plaster, located at the edge of a public street of the city; that the plaintiff and other boys were playing on the shaft when it fell to the ground, injuring him severely; that it was not braced or fastened, and slight pressure [243]*243on it was likely to cause it to fall; that it was pla.ced there some months before that time by the authorities of the City of Warren-ton, who, by consent of the county commissioners and under agreement with them, had charge of the court-house square, and had been improving it and keeping it in condition for use of the citizens of the city; that for many years many people, including adults and children, had been frequenting the court-house square at the place where the injury occurred; that this iron shaft was alluring and attractive to children; that the city had both actual and constructive notice of its dangerousness, and had actual notice that children played upon and around it, and had notice for many years that children frequented the path and played at and near the place where the plaintiff wás injured. It was alleged that the city was negligent in placing and maintaining the iron shaft in the insecure and dangerous condition described.

The defendant demurred, upon the ground that the petition disclosed that the injury occurred on the court-house property, belonging to the county, and not on one of the streets or sidewalks of the city, nor at a place over which the City of Warrenton had jurisdiction; and further upon the ground that the dangerous bar of iron which fell upon the plaintiff, causing his injury, could be reached by him only upon his voluntarily going upon the courthouse property, etc. The court overruled the demurrer to the petition, and the defendant , excepts to the judgment.

The petition alleges that the City of Warrenton had charge of the court-house square for many years and had a walk' across the court-house square from one public street to another; and that the shaft of iron which injured the plaintiff was placed there by the city) in order to stop travel over a certain Ayalk-way. The petition is clear that the City of Warrenton maintained this agency, which, because of its unsafeness, was liable to injure children who played upon or around it. As against the demurrer this court, of necessity, must take the allegations of the petition to be true. Under the rulings of the Supreme Court in American Telephone & Telegraph Co., v. Murden, 141 Ga. 208 (80 S.. E. 788), and Mayor &c. of Unadilla v. Felder, 145 Ga. 440 (89 S. E. 423), and cases there cited, the petition sets forth a cause of action. The court did not err in overruling the demurrer.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.

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Luke, J.

C. M. Smith Jr., by next friend, C. M. Smith Sr., brought suit for damages against the City of Warrenton, alleging in substance that the plaintiff, who was four years of age, was injured in that city, in the court-house square belonging to the county, by the fall of an iron shaft, round in shape, two inches in diameter, and about twenty feet long, one end of which was lying on a slab at the edge of the court-house steps, and the other on a pier made of brick, covered with cement plaster, located at the edge of a public street of the city; that the plaintiff and other boys were playing on the shaft when it fell to the ground, injuring him severely; that it was not braced or fastened, and slight pressure [243]*243on it was likely to cause it to fall; that it was pla.ced there some months before that time by the authorities of the City of Warren-ton, who, by consent of the county commissioners and under agreement with them, had charge of the court-house square, and had been improving it and keeping it in condition for use of the citizens of the city; that for many years many people, including adults and children, had been frequenting the court-house square at the place where the injury occurred; that this iron shaft was alluring and attractive to children; that the city had both actual and constructive notice of its dangerousness, and had actual notice that children played upon and around it, and had notice for many years that children frequented the path and played at and near the place where the plaintiff wás injured. It was alleged that the city was negligent in placing and maintaining the iron shaft in the insecure and dangerous condition described.

The defendant demurred, upon the ground that the petition disclosed that the injury occurred on the court-house property, belonging to the county, and not on one of the streets or sidewalks of the city, nor at a place over which the City of Warrenton had jurisdiction; and further upon the ground that the dangerous bar of iron which fell upon the plaintiff, causing his injury, could be reached by him only upon his voluntarily going upon the courthouse property, etc. The court overruled the demurrer to the petition, and the defendant , excepts to the judgment.

The petition alleges that the City of Warrenton had charge of the court-house square for many years and had a walk' across the court-house square from one public street to another; and that the shaft of iron which injured the plaintiff was placed there by the city) in order to stop travel over a certain Ayalk-way. The petition is clear that the City of Warrenton maintained this agency, which, because of its unsafeness, was liable to injure children who played upon or around it. As against the demurrer this court, of necessity, must take the allegations of the petition to be true. Under the rulings of the Supreme Court in American Telephone & Telegraph Co., v. Murden, 141 Ga. 208 (80 S.. E. 788), and Mayor &c. of Unadilla v. Felder, 145 Ga. 440 (89 S. E. 423), and cases there cited, the petition sets forth a cause of action. The court did not err in overruling the demurrer.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.

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Bluebook (online)

98 S.E. 91, 23 Ga. App. 241, 1919 Ga. App. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-warrenton-v-smith-gactapp-1919.

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