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CITY OF EAST POINT v. MASON et al. 34186. CROWE v. MASON et al.
34172.
Action for damages; from Fulton Superior Court-- Judge Andrews. May 14, 1952.
FELTON, J.
1. There are no facts alleged in the petition authorizing a conclusion that the negligence of the defendant Crowe or the defendant city caused the gravel to be washed or carried onto the sidewalk.
2. An abutting property owner is not liable for any defect in a sidewalk not caused by his negligence or positive act.
3. The allegation that the plaintiff stepped on "some loose gravel" does not show a defect on or in the sidewalk in the absence of additional allegations showing in what particular loose gravel constitutes a defect or danger.
4. The special demurrer pointing out certain defects in the petition should have been sustained.
5. The court did not err in overruling a special demurrer which did not point out the claimed defects in the petition.
Miss Arminda Mason sued the City of East Point and C. D. Crowe for damages for personal injuries alleged to be the result of the negligence of the defendants. The petition alleged in substance: that Crowe owns the land abutting the north side of Center Street, a public street in East Point; that there is a driveway leading into said land which crosses the sidewalk on the north side of Center Street; that the driveway is covered on top with loose gravel; that from time to time as a result of rains and the use of the driveway some of the gravel would drift or be carried onto the sidewalk on the north side of Center Street; that both defendants knew that gravel drifted and was carried from the driveway onto said sidewalk and that neither defendant took any steps whatever to keep the gravel contained in the driveway and off the sidewalk; that at approximately 6:30 a.m. on the 2nd day of March, 1951, the petitioner was walking on the sidewalk when she stepped on some loose gravel which had drifted and been carried from the driveway onto the sidewalk and lost her balance and fell and broke her left hip; that the petitioner's fall was caused by the negligence of the defendants in not taking the necessary steps to keep said gravel in said driveway and off the sidewalk and in allowing the gravel to accumulate and remain on the sidewalk; that at the time the petitioner fell it was not yet light and she did not see the gravel on which she stepped and which caused her to fall; that due notice was given to the City of East Point, etc. C. D. Crowe filed a general demurrer to the petition, and he excepted to the judgment overruling his demurrer. The City of East Point filed general and special demurrers. The special demurrers were that it is not alleged how long loose gravel had been on the sidewalk; that it is not alleged when the loose gravel was carried or drifted from the driveway; and that the notice given the city was insufficient. The city excepts to the judgment overruling its demurrers.
1. Construing the petition against the pleader, it is construed to mean that a small amount of gravel or coarse grain sand was washed from the driveway or carried by foot or vehicle, or other means, in a natural and usual way without being caused by the negligence of Crowe. The only negligence alleged against Crowe and the city is that the gravel was permitted to accumulate and remain on the sidewalk. There are no facts alleged authorizing a conclusion that the negligence of Crowe or the city caused the gravel to be washed or carried onto the sidewalk.
2. Even if the accumulation of a small amount of gravel on a sidewalk could be considered a defect or dangerous condition, an abutting property owner is not liable for damages for such an accumulation when he does not cause or participate in the first appearance of gravel or any addition thereto and is guilty of no negligence which causes any gravel to get upon the sidewalk. Rhodes v. Perlis, 83 Ga. App. 312 (63 S. E. 2d, 457), and cases and authorities cited.
3. The petition alleges that the plaintiff stepped on "some loose gravel." We do not think that this allegation shows even a minor defect on or in the sidewalk in the absence of additional allegations showing in what particular loose gravel constitutes a defect or danger. This is true as a general proposition and it is especially true in this case when it is not alleged that the sidewalk was paved, for the reason that a showing that gravel on top of clay or sand or a mixture of both would require specific allegations showing why it would cause a defect or danger. "A municipal corporation is charged with the duty of exercising ordinary care in keeping its streets and sidewalks in a reasonably safe condition, so that persons can pass along them in the ordinary methods of travel with reasonable safety." City of Silvertown v. Harcourt, 51 Ga. App. 160 (1) (179 S. E. 772); City of Barnesville v. Sappington, 58 Ga. App. 27, 28 (197 S. E. 342), and citations; City of Rome v. Hanson, 58 Ga. App. 617 (199 S. E. 329); Harris v. City of Rome, 59 Ga. App. 279, 281 (200 S. E. 337). To require municipal corporations to keep sidewalks and streets free from loose gravel is to require the impossible from a standpoint of reasonable possibility both from a manpower and a financial point of view. Further, it does not seem unreasonable for a municipality to permit loose gravel to remain on streets and sidewalks and it would seem that ordinary travel over streets and sidewalks embraces travel over streets and sidewalks often covered or partially covered with loose sand or gravel. It is fundamental that a municipality is not an insurer of the safety of its streets and sidewalks. It follows that the petition does not allege a cause of action against the city.
4. The petition was subject to both general and special demurrers as to the time when the gravel got on the sidewalk and how long it had been there ( Central of Ga. Ry. Co. v. Keating, 177 Ga. 345, 351, 170 S. E. 493), and the special demurrer pointing out the lack of such allegations should have been sustained.
5. The special demurrer as to the insufficiency of the notice to the city does not point out the claimed defects in the notice and the court did not err in overruling it.
The court erred in overruling the general demurrer of the city and in overruling the special demurrers dealt with in division 4 of the opinion, and erred in overruling the general demurrer of the defendant Crowe; the court did not err in overruling the special demurrer dealt with in division 5 of the opinion.
Judgments as to the city are affirmed in part and reversed in part; the judgment as to the defendant Crowe is reversed. Sutton, C. J., and Worrill, J., concur.
Thomas B. Branch Jr., Phillips, Johnson & Williams, contra.
Marshall, Greene Baird & Neely, for plaintiff in error (case No. 34186).
Thomas B. Branch, Harold Sheats, Marshall, Greene, Baird & Neely, Ferdinand Buckley, contra.
Phillips, Johnson & Williams, for plaintiff in error (case No. 34172).
DECIDED SEPTEMBER 26, 1952.
Saturday May 23 04:39 EDT


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