Massey v. Mayor of Columbus

1 Ga. L. Rep. 110

• Court: Supreme Court of Georgia
• Decided: July 1, 1885
• Status: Published

Opinion

Blandford, J.

A city is bound to keep its streets in a reasonably safe condition for persons to pass thereon by night as well as by day; but if a person could have avoided injury from the existence of an open sewer in the middle of a street by the use of ordinary diligence, the city would, not be liable therefor. 63 Ga., 295 ; 55 Id., 19 ; 66 Id., 195.

(a) In the middle of a street of the city of Columbus, running north and south, there was an open sewer. The street was one hundred and thirty-two feet-wide, and there was more than fifty feet on each side of the sewer which was safe for travel. -This street intersected with streets running east and west, and the latter had no sewer open in them and were safe for travel. The plaintiff lived near the city, and knew of the open sewer, which was five or six feet wide and eight or ten inches deep, but he left the track which was safe, and sought to cross the-street and drove into this sewer, which had been recently cleaned out, whereby he alleges that his horse became frightened and ran away, in consequence of which his buggy was broken, his horse injured and he-himself damaged, although if he had continued on the street which was in good order and safe for travel to the intersection of the street running-east and west, no damage would have occurred :

C. J. Thornton, for plaintiff in error. Hatcher & Peabody, for defendants.

Held, that if he voluntarily departed from a track which was safe and drove into the sewer, he ought not to recover.

Judgment affirmed.