Seymour v. City of Elberton

20 S.E.2d 767, 67 Ga. App. 426, 1942 Ga. App. LEXIS 436

• Court: Court of Appeals of Georgia
• Decided: April 14, 1942
• Docket: 29481.
• Status: Published

Opinions

Gardner, J.

This case is. here on exceptions to the sustaining of a general demurrer to the petition of the plaintiff. The substance of the petition we quote: “That many years ago the defendant excavated upon and as a part of the sidewalk on the east side of South Thomas Street in the City of Elberton, approximately opposite the lines separating the lots on said South Thomas Street; known as numbers 125 and 131, and approximately three hundred (300) feet south of the intersection of Thomas and Church Streets, an opening in the ground approximately 18 inches deep, 20 inches long, and 12 inches wide, and installed therein a certain iron water-meter box as a part of the waterworks system operated by the defendant, and which said excavation and water-meter box are still the property and under the supervision of defendant. That said water-meter box as originally manufactured and as constructed and installed at said location was equipped with an iron lid or cover, which was in turn fitted on the under side with a locking device manipulated by a key through the outer side of said lid or cover, •which said key when turned caused an iron or steel bolt, plunger, or tongue to engage underneath a flange on the edge of said water-meter box, thereby locking the said lid or cover in place; that on the occasion when plaintiff was injured as hereinafter set forth, the said lid or cover-was not in place or (Over said water-meter box and hole, and said water-meter box and hole was open and without any guard or anything else about it to indicate its presence or dangerous condition. That at the time hereinafter set forth the said lid or cover for said water-meter box was not fully equipped with the aforesaid locking device, in that the bolt, plunger, or tongue which was designed to engage the flange of the water-meter box and lock the same 'in place had been broken off, lost, or removed from said lid or cover, making it impossible to lock or fasten the same in place, and that said part of said locking device had been absent from said lid or cover for such a period of time and that all parts of said locking device were very rusty and showed that they had not been in use for a long period of time, and for a sufficient length of time for the officers, employees, and agents of the defendant to have ascertained- said condition by the exercise of ordinary care, That the said cover or lid for said water-meter box was lying near-by said box, but not on, upon, or over the same. Plaintiff further shows that no water had been distributed by the defendant from or through said water-meter b.ox for several years next preceding the date of her injury and that said water-meter box was not in use at the time she suffered her injuries herein complained of.” The subsequent paragraphs allege in substance that there was a small street light located near the meter box; that plaintiff was walking on the street about 8:30 p. m., stepped into the open water-meter box and sustained injuries.

The petition alleges the following acts of negligence on the part of the municipality: In having permitted the street light located near said water-meter box and hole to be unlighted at the time plaintiff was injured as aforesaid. In permitting said water-meter box and hole to remain in said sidewalk after the same had been abandoned for use. In not having repaired and kept in repair the lid or cover of said water-meter box so that the same could be locked or securely fastened. In not having said lid or cover of said water-meter box / securely locked or fastened at the time plaintiff was injured. In not having inspected said water-meter box and the lid or cover thereof and in failing to discover the defective condition of said lid or cover of said -water-meter box. In not filling up the hole or excavation in said water-meter box, so that in the event the lid or cover thereof was removed or displaced it would leave no hole or excavation into which a pedestrian could step or plunge. In not having the lid or cover of said water-meter box so locked, fastened, and secured that it could not be removed from said water-meter box.

The general demurrer alleges: “Defendant demurs generally to plaintiff’s petition as same sets forth no cause of action. . . Defendant demurs generally to plaintiff’s petition as same nowhere shows that the top to the water-meter box or the box itself were defective in such a way as to amount to negligence on the part of the defendant; and same does not allege that the top was left off of said box by any agent or employee of the city, nor that the city or any of its officials or employees had knowledge that said top was off of said box, nor that same had been off a sufficient length of time to put defendant on notice that it had been removed.”

The plaintiff does not base her cause of action-on the fact that the lid or cover was off the water-meter box and that defendant had notice thereof. This is not the negligence on which the petition is based, and is not set out as an act of negligence. The acts of negligence on which the petition is based preceded in point of time the removal of the lid or cover from the water-meter box. The bases of the acts of negligence complained of are: (1) That the lid or cover of the water-meter box was originally designed with a slot-locking device, which had become dismantled so that this locking device was inoperative, and that this defective condition of the top was known to the municipality, or should have been, known by the exercise of ordinary care; that the locking device showed evidence of having rusted and become unserviceable, and that the municipality was negligent in not having said locking device repaired so that it could be securely fastened over the top of the meter-box, and in not having the lid securing same fastened at the time of plaintiff’s injury. (3) That the use of the meter box had been abandoned, and the city was negligent in not filling up the excavation so that should the lid be removed there would be no hole or excavation in which pedestrians could fall. (3) The city was negligent in not keeping the street light burning near the water-meter box. We will deal with these allegations of negligence in reverse order.

A city or municipality is bound to exercise ordinary care and diligence in keeping its streets and sidewalks in a reasonably safe condition for the use of pedestrians, and whether or not this has been done is generally a jury question under the facts of each case, but where no acts of negligence are alleged sufficient to show a breach of this duty there is of course no jury question presented. We know of no law which requires a city or municipality to safeguard, by electric lights or otherwise, a defective condition in a street or sidewalk of which it has no knowledge, and which it could not have discovered by the exercise of ordinary care and diligence. The allegations of the petition negative this proposition.

Counsel for the plaintiff in error, in his argument, emphatically disclaims any contention that the cause of action is based on the fact that the municipality knew or should have known that the top or cover was of£ the water-meter box. We do not think the municipality would be held to the accountability to safeguard against any possibility which might arise, and we do not think the allegations of the petition are sufficient to sustain the proposition that the municipality could reasonably anticipate the possibility of the removal of the meter-box top to such an extent that it would have to put safeguards by lighting or otherwise. It would seem that this would incur too extended expense and duty on our municipalities. Such requirements would almost reach the point of requiring the municipalities to become insurers against the removal of its meter-box covers and similar devices.

It is nowhere alleged that the top did not fit into the meter box; that, when fitted on, it was not level with the surface of the ground or street or sidewalk, regardless of the defective condition of the slot-locking device. It is not alleged that any municipal employee removed the cover, or when it was removed that the municipality knew it, or by the exercise of ordinary care and diligence could have known it. It is true that a dangerous place in a street or sidewalk must be safeguarded in some appropriate way by a municipality until it can be fixed, if such dangerous place is known to the municipality, or by the exercise of ordinary care and diligence could be known, but under this petition there is no such dangerous place in the street alleged. There is alleged only the defect in the slot-locking device of the meter-box cover, therefore Harrington v. Macon, 125 Ga. 58 (4) (54 S. E. 71), Holliday v. Athens, 10 Ga. App. 709 (2) (74 S. E. 67), and City of East Point v. Christian, 40 Ga. App. 633, 638 (151 S. E. 42), are not in point.

We come next to consider whether, under the allegations of this petition, the municipality was negligent in permitting the meter box to remain on the sidewalk after it had been abandoned for use. In view of what we have said above, and the allegations of the petition, we fail to comprehend any actionable negligence stated in the petition against the municipality, for if the box was not defective, and if the lid fitted thereon, notwithstanding the defects of the slot-locking device, we know of no rule of law which would require the municipality to remove the box. Aside from this, construing the petition most strongly against the pleader, it nowhere appears that the presence of the meter box on or near the sidewalk, or the condition of the top, was the proximate cause of the injury. The proximate cause of the injury, construing the petition in this light, was the removal of the top from the meter box by a third party, or some other means of which the city had no knowledge and could not have known by the exercise of ordinary care. In so far as the allegations of the petition go, there is no allegation to show that the condition of the meter-box cover was in any way connected with the removal of the top from the box. To sustain a recovery the negligence charged must be the proximate and effective cause of the injury. Gillespie v. Andrews, 27 Ga. App. 509 (108 S. E. 906); Southern Railway Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172); Hardwick v. Figgers, 26 Ga. App. 494 (106 S. E. 738). We call attention to Andrews & Company v. Kinsel, 114 Ga. 390 (40 S. E. 300, 88 Am. St. R. 25), where it was held: “It is unnecessary to argue or to cite authorities to sustain the well-settled legal principle that, to enable one to recover for damage resulting from the negligent conduct of another, it must appear that the negligence of the defendant was the proximate cause of the injury sustained. It is also a well-recognized principle that where there has intervened between the defendant’s negligent act and the injury an independent illegal act of a third person producing the injury, and without which it would not have happened, the latter is properly held the proximate cause of the injury, and the'defendant is excused.” Also see City of Atlanta v. Guice, 41 Ga. App. 146, 156 (153 S. E. 144). In quoting these authorities we do not mean to hold that the municipality was negligent in failing to fill the meter box, but, conceding for the sake of argument that it was, the petition fails to allege actionable negligence in this respect.

We come next to consider whether the allegations in regard to the condition of the slot-locking device of the cover of the meter box set out a cause of action. We do not think so. Again we find ourselves inquiring as to what was the proximate cause of the injury, and we are again obliged to conclude that it was the removal of the top from the meter bok. It is argued that, by reason of the top not being securely fastened, it created a condition which would require the municipality to anticipate that .some one might remove it and cause an injury such as is alleged. In support of this contention the plaintiff cites Terrell v. Giddings, 28 Ga. App. 697 (112 S. E. 914), Wallace v. Matthewson, 143 Ga. 236 (84 S. E. 450), and Mills v. Central of Ga. Ry. Co., 140 Ga. 181 (78 S. E. 816, Ann. Cas. 1914C, 1098). These decisions, as well as Mayor &c. of Unadilla v. Felder, 145 Ga. 440 (89 S. E. 423), dealt with the maintenance of dangerous agencies. We are not prepared to hold that the absence of a slot-locking device on a water-meter box is negligence on the part of a municipality, or the maintenance of a dangerous agency, where this is the only defect alleged as to the serviceability and safety of the meter box and its cover. In all the eases we have been able to find where municipalities have been held liable for injuries resulting from defects in meter boxes near and on the sidewalks, it is where they were defective in that they protruded above the ground, or would move or give way, or the tops did not rest securely on the rims of the boxes, or there was some other defective installation or maintenance, and such was the proximate cause of the injury. See City of Rome v. Gordon, 53 Ga. App. 536 (186 S. E. 439); Davis v. Rome, 37 Ga. App. 763 (142 S. E. 171).

We do not think the petition alleged a cause of action. The court did not err in sustaining the general demurrer.

Judgment affirmed.

Broyles, C. J., and MacIntyre, J., concur.