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Lawskills.com Georgia Caselaw
CITY OF THOMSON v. POSS et al.
36073.
Action for damages. Before Judge Perryman. McDuffie Superior Court. December 19, 1955.
FELTON, C. J.
The petition alleged a cause of action for damages caused by the defendant's negligent maintenance of one of its streets; therefore the court did not err in overruling the general demurrer to the petition.
Mrs. Sara English Poss and Mrs. Mary Jane English Reese sued the City of Thomson for the death of their mother, allegedly caused by the defendant's negligent maintenance of one of its streets. The petition alleged in substance: that on June 26, 1955, at approximately 6:45 p.m. plaintiff's mother, Mrs. Alma Arnett English, was driving her automobile along Thomas Avenue in Thomson; that when she reached a certain point on said avenue and while driving at a rate of speed not exceeding 15 miles per hour, she ran into a hole or excavation in said street; that Mrs. English did not know of the existence of the hole or excavation at the time, having no prior knowledge of the existence of such danger, and there being no sign, warnings, or barriers erected to warn the traveling public of the existing danger; that at the time Mrs. English was operating her automobile in a careful manner and was free of fault or negligence in running into "said danger," such "danger" being of such nature that it could not be detected by the traveling public in advance of running into same; the hole or excavation extended at least half the width of Thomas Avenue, was from 18 to 24 inches deep, was 2 feet wide, and was approximately 10 feet long; "the said hole or excavation had been there or had existed for at least three weeks before Mrs. English ran her automobile into it, and the City of Thomson, defendant, knew of its existence and was charged with knowledge thereof because notice thereof was presumed because the defect existed for such a great length of time that reasonable diligence required such knowledge, and in addition the City of Thomson had actual notice of the defect in said avenue"; that the defendant failed to place any warning, signal, light, or barrier at or near the excavation or hole to warn the traveling public of the danger, and nothing was done to correct said danger; that as a result of her running into the hole or excavation, Mrs. English was injured as described, which injuries caused her death; that the direct and proximate cause of Mrs. English's death was the defendant's negligence, to wit, in permitting the hole or excavation to exist for such a great length of time without repairing same or making any attempt to repair same; in failing to use ordinary care in maintaining said street; and in permitting it to be unsafe and defective when it knew and should have known of such condition in time to repair it; or give warning of its existence; in not placing any signs, warning, light, or barrier at or near said hole or excavation to warn the traveling public and Mrs. English of the dangerous condition existing; in not exercising ordinary care to keep Thomas Avenue, a public street, in reasonably safe condition for passage of the public and Mrs. English; in not repairing said avenue and in not placing signs, warnings, lights, or barriers at or near the hole or excavation after receiving actual notice of the condition of said avenue.
The city's general demurrer to the petition was overruled and it excepts.
The petition alleged a cause of action against the city. It alleged a defect in the street which rendered it unsafe for purposes of travel by ordinary modes and methods, and that such defect had existed for three weeks; therefore it alleged a violation of a duty owed to the general public and constructive notice of the defect. Mayor &c. of Buford v. Medley, 58 Ga. App. 48 (1) (197 S. E. 494).
The defendant's main argument is that the petition showed Mrs. English was guilty of such negligence in not discovering and avoiding the consequences of the defect as would bar a recovery. This contention is without merit. While it was not necessary for the plaintiffs to negative Mrs. English's negligence, they did allege that she was operating her automobile in a careful manner and was free of fault or negligence in running into the hole or excavation. The petition did not show that Mrs. English, in the exercise of ordinary care, could have discovered the defect in the street and avoided running into it. It was alleged that the hole or excavation was of such nature that it could not be detected by the traveling public in advance of running into it. Nothing was alleged to contradict such allegation.
The court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Quillian and Nichols, JJ., concur.
Stevens & Stevens, contra.
Jack D. Evans, for plaintiff in error.
DECIDED MARCH 13, 1956 -- REHEARING MARCH 28, 1956.
Saturday May 23 02:18 EDT


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