Phillips v. Town of Fort Oglethorpe

162 S.E.2d 771, 118 Ga. App. 62, 1968 Ga. App. LEXIS 1310

• Court: Court of Appeals of Georgia
• Decided: June 7, 1968
• Docket: 43240
• Status: Published

Opinions

Deen, Judge.

The duty imposed by Code § 69-303 on municipalities to keep the streets in a reasonably safe condition for travel is a ministerial or corporate function, a violation of which resulting in injury to the plaintiff is actionable. Herrington v. Mayor &c. of Macon, 125 Ga. 58 (4) (54 SE 71); Mayor &c. of Milledgeville v. Holloway, 32 Ga. App. 734 (1) (124 SE 802); Mayor &c. of Macon v. Smith, 14 Ga. App. 703, 706 (82 SE 162); City of Waycross v. Howard, 42 Ga. App. 635 (157 SE2d 247). As against a general demurrer, and disregarding mere legal conclusions of the pleader, the real issue in this case is whether the maintenance of a defective traffic light by the city, with knowledge of the defect, in such manner as to cause automobiles relying upon it to collide with each other constitutes negligence in the exercise of a governmental or ministerial function, for we believe the conclusion that it is negligence, if proved as alleged, is beyond dispute. Applying the Code section, we must accept that by definition the duty to keep the streets in a reasonably safe condition for travel is a ministerial duty. The facts alleged show that the street, with the traffic light showing a “go” signal in all directions, was not safe for travel and every car approaching the intersection was, by virtue of this fact, on collision course. The contention is, however, that regardless of these facts the maintenance of the traffic light system is governmental, as a part of the police power of the municipality, and this also is true. A fine but valid distinction has been drawn in similar cases. In Mayor &c. of Savannah v. Jones, 149 Ga. 139 (4) (99 SE 294) the court held: “The municipality was in the performance of a governmental function in maintaining and emptying the box above described, but the municipality was also under ministerial duty to keep its streets and sidewalks free from obstruction such as alleged. Consequently, under the facts alleged in the petition, at the time of the injury the exercise of the governmental function of emptying the box had ceased, and the ministerial duty of keeping the streets and sidewalks free from obstructions was obligatory, and the municipality would be liable in damages for negligence.” The duty of the municipality is to keep its streets in reasonably safe condition for travel by ordinary modes, and it will be “liable for damages for injuries sustained in consequence of its derelictions in this regard, no matter by what cause the streets may have become defective and unsafe, where the city knew or should have known of the defect in time to repair it or to give warning of its existence.” See City of Atlanta v. Robertson, 36 Ga. App. (1) (135 SE 445). In that case the defect lay with the defective maintenance of a sewerage system, a governmental function, resulting in an unsafe traffic condition by which the plaintiff was injured. See also Allison v. Medlock, 224 Ga. 37 (4) (159 SE2d 384). Likewise, the maintenance of a park is a governmental function, but an object protruding from the park above the sidewalk, rendering travel on the sidewalk unsafe, is actionable. City of Macon v. Stevens, 42 Ga. App. 419 (1) (156 SE 718).

A case closely in point is Johnston v. City of East Moline, 405 Ill. 460 (91 NE2d 401). A municipal street intersection was controlled by four sets of traffic lights or standards. The one on the northwest corner was knocked out and the city, with knowledge of the condition, allowed traffic to continue for several days controlled by only three standards. As a result of the absence of the traffic signal, an automobile which would otherwise have had the right of way collided with another automobile entering at right angles on a green light. The court held in part: “The question of what the city did or permitted at the intersection, in the matter of controlling or not controlling traffic after the northwest standard was removed, is before us, and whether or not its acts and omissions in that regard were in the exercise of a governmental function or a corporate [ministerial] duty must be decided. . . A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. . . Appellant having elected to install, and having installed the signal system in question, it was a corporate duty not to permit its operation in a manner calculated to cause injury to others ... it failed to perform a corporate duty.” “The 'defects in its streets’ for which a municipal corporation may be held liable under the provisions of this Code section [§ 69-303] have been held to include objects adjacent to, and suspended over, the municipality’s streets and sidewalks, the presence of which renders the use of these thoroughfares more hazardous.” City Council of Augusta v. Hammock, 85 Ga. App. 554, 560 (69 SE2d 834).

Some of the Georgia cases have stated broadly that the maintenance of traffic control systems by municipalities is a governmental function, and the difficulty lies in the meaning of the word maintenance within the context of the case. In Stanley v. City of Macon, 95 Ga. App. 108 (97 SE2d 330), one of the cases where this language appears, the defect in the traffic control installation was above the street and allowed the escape of high voltage current so that a Georgia Power Company employee climbing the pole in connection with his own duties for the power company came in contact with it. The court specifically pointed out (p. 110): “It cannot reasonably be said that defective maintenance of a traffic control signal 15 feet above the street at a place which could not be reached except by climbing a pole is in such a location as to constitute defective maintenance of the streets and sidewalks along which normal pedestrian and vehicular traffic moves, and liability against the city cannot be predicated upon this theory.” Had the defect inhibited the reasonably safe flow of traffic, an opposite conclusion would doubtless have been reached, and this is where Code § 69-303 comes into play. In Arthur v. City of Albany, 98 Ga. App. 746, 747 (106 SE2d 347) it was held that the city’s discretion as to the location of stop signs was governmental in character. This being so, the city could either erect or remove the signs at will, and the fact that one previously erected and removed was not replaced did not render it liable. See Code § 69-302. In City of Rome v. Potts, 45 Ga. App. 406 (165 SE 131) the plaintiff complained that the timing sequence of the traffic light was too fast, but the decision as to how the light should be timed, like the decision to erect it in the first place, was within the discretion of the municipal authorities.

The allegations of the present case, if proved, established that the municipality was negligent in not repairing its traffic control device, that the malfunction of the device was a proximate cause of the plaintiff’s injuries, and that the negligence alleged rendered the use of the streets less safe.

The trial court erred in sustaining the general demurrer.

Judgment reversed.

Felton, C. J., Jordan, P. J., Hall and Whitman, JJ., concur. Felton, C. J., and Jordan, P. J., also concur specially. Bell, P. J., Eberhardt, Pannell, and Quillian, JJ., dissent.