Opinion
31266.
DECIDED JUNE 6, 1946.
Damages; from Berrien superior court — Judge W. R. Smith. March 30, 1946.
Eugene Cook, attorney-general, Beverly Irwin, L. C. Groves, assistant attorneys-general, J. P. Knight, for plaintiff in error.
H. B. Edwards, H. B. Edwards Jr., Franklin, Eberhardt Barham, contra.
1. While a county is not liable to suit unless made so by statute, it has been provided by a statute of this State that a county is primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities; and the term "bridge," as used in said statute, includes all the appurtenances necessary to its proper use, and embraces its abutments and approaches.
2. Where a county or State Highway Department negligently leaves road machinery on the abutment or approach to a bridge, so as to render it dangerous for automobiles to travel thereon, and cause injuries to a person undertaking to cross the bridge in an automobile, such dangerous condition in the bridge is a defect in the bridge within the meaning of the statute which makes a county liable for injuries caused by a defective bridge.
( a) A suit may be maintained against a county and a verdict and judgment obtained against it for damages resulting from a defect in a bridge, although it may appear that jurisdiction over the highway on which the bridge was located had been assumed by the Highway Department under terms of law, and that the department, and not the county, was guilty of the negligence in the maintenance and construction of the bridge or its approaches which caused the injury; for, in contemplation of the law, the negligence charged against the Highway Department is the negligence of the county.
3. The concrete structure described in the petition, erected over a creek so as to make a continuous roadway and to afford to travelers a convenient passageway from one bank of the creek to the other, is a bridge, within the meaning of the Code, § 95-1001, which makes a county primarily liable for injuries caused by reason of any defective bridges.
4. The fact that the bridge over the creek on the highway had 12 inches of dirt and asphalt paving on top of its concrete floor did not constitute the structure a culvert, instead of a bridge.
5. The petition set out a cause of action, and the trial judge did not err in overruling the demurrer thereto.
DECIDED JUNE 6, 1946.
John S. Vickers sued Berrien County for damages from personal injuries alleged to have been sustained on the approach to a bridge across Thigpen Creek or Branch on State Route No. 125, between Valdosta and Ray City, Georgia. It is alleged: That the accident occurred on the night of August 25, 1945, at about 10 o'clock p.m., while the plaintiff was riding on the front seat of an automobile that was being driven by R. A. Passmore Jr., in a northerly direction along said highway at a rate of speed of approximately 40 miles per hour; that, as the said R. A. Passmore approached the north end of said bridge he struck a cut-away harrow which was upon, and on the east side of, the roadway of such highway and extending on said structure approximately two feet from the north edge thereof, and after hitting and passing over said harrow and about 10 feet farther north on the roadway on said approach to the bridge, the automobile struck a rubber-tire packer, consisting of 5 rubber tires on the rear and 2 rubber tires in the front, the same being a triangular shaped object, and by the impact of the collision the automobile was almost completely demolished and the plaintiff was severely injured as alleged in the petition; that the collision and injuries thereby inflicted on the plaintiff occurred on a dark night, the driver of the automobile being unable to see the said machinery which had been negligently left on said bridge and the approach thereto by the State Highway Department, acting by and through its employees, without any notice or warning signs to indicate that said highway was being repaired or of the presence of said machinery thereon, although said highway was then being used by the public in driving cars over the same; and that said bridge was thereby rendered defective on said occasion.
The description of the concrete structure as set out in detail in the petition is as follows: "The overall span of the structure (measured lengthwise along said highway) is approximately 28 feet and 6 inches. The overall width of the structure is approximately 37 feet and 8 inches. The height of the structure from the contiguous ground to the top thereof is approximately 9 feet. The clear height of the opening under the structure from the bottom of the floor thereof to the bottom (in the ground) of the structure is approximately 7 feet. This structure is divided into three sections between the north abutment and the south abutment. Beginning at the south abutment, there is one section approximately 8 feet wide; farther north there is another section approximately 8 feet wide; and still farther north there is another section approximately 8 feet wide. There are, between the abutment on the south and the abutment on the north, two concrete walls, each being 1 foot in thickness and joining with and extending underneath the floor of the structure at right angles to the floor of the structure that is across and under the floor of the structure, which, together with the abutments at both ends of the structure, support and hold in place the structure. In brief, the structure is divided into three sections, as aforesaid, by the north abutment and the south abutment and the two walls between the two abutments just described. There are two head walls on each side of the structure, the same being 1 foot and 4 inches in width. The space between the north wall of the abutment and the south wall of the abutment is approximately 26 feet. The width of the stream spanned by the structure is approximately 26 feet. The surface of the roadway over the top of the structure is flush with the top of the headwall and rises in height approximately 8 inches from the side of the roadway to the center of the roadway, and such roadway over the structure is also flush with the top of the roadway on the north and south ends of the structure. The concrete floor of the structure is approximately 12 inches in thickness." Two photographs, showing different views of the structure, are attached to and made a part of the petition. The structure involved had been built and constructed by the State Highway Department on said highway and as a part thereof within ten years from the date of the filing of this suit.
The county vouched the State Highway Department into court to defend the suit, as provided by the Code, § 95-1710.
The defendant demurred generally to the petition on the grounds: (1) that it set forth no cause of action; (2) that the allegations of said petition allege that the accident was due to the negligence of the employees of the State Highway Department, when under the law the State Highway Department is not responsible for the negligence of its employees; (3) that, under the allegations of the petition, the structure defined therein is not a bridge but is a culvert, and that the defendant is not liable for accidents occurring on a culvert or approaches thereto. The court overruled the demurrer, and the exception here is to that judgment.
1. It is true, as contended by the plaintiff in error, that "A county is not liable to suit for any cause of action unless made so by statute." Code, § 23-1502. But it has been provided by statute, the act of December 29, 1888 (Ga. L. 1888, p. 39), "that in every case the county shall be primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities." Code, § 95-1001. The term "bridge," as used in said Code section, "includes all the appurtenances necessary to its proper use, and embraces its abutments and approaches. That which is necessary as an approach, to connect the bridge with the highway, is an essential part of the bridge itself." Howington v. Madison County, 126 Ga. 699 ( 55 S.E. 941); Warren County v. Battle, 48 Ga. App. 240 ( 172 S.E. 673); Lumley v. Pollard, 61 Ga. App. 681, 690 ( 7 S.E.2d 308).
2. Where a county, or State Highway Department as in the present case, negligently leaves road machinery on the abutment or approach to a bridge, so as to render it dangerous for automobiles to travel thereon, and cause injuries to a person undertaking to cross the bridge in an automobile, such dangerous condition in the bridge is a defect in the bridge within the meaning of the Code, § 95-1001, which makes a county liable for injuries caused by a defective bridge. Bibb County v. Worthen, 177 Ga. 178 ( 169 S.E. 751); Havird v. Richmond County, 176 Ga. 722 ( 168 S.E. 897); Havird v. Richmond County, 47 Ga. App. 580 ( 171 S.E. 220). "A suit may be maintained against the county and a verdict and judgment obtained against it for damages resulting from a defect in a bridge, although it may appear that jurisdiction over the highway on which the bridge was located had been assumed by the Highway Department under the terms of the law, and that the Highway Department, and not the county, was guilty of negligence, in the maintenance and construction of the bridge or its approaches, which caused the injury." Calhoun v. Dooly County, 65 Ga. App. 482, 485 ( 15 S.E.2d 816). The State Highway Department, when vouched into court, shall defend all suits and be responsible for all damages awarded against any county, under existing laws, whenever the cause of action originates on highways, jurisdiction over which shall have been assumed by said Highway Department, under the terms of the law. In contemplation of law, the negligence charged against the department or its employees is the negligence of the county.
3. But it is contended by the plaintiff in error that the structure described in the petition and alleged to be a bridge is not a bridge at all, but is a culvert. If it is a bridge, the petition was not subject to the defendant's demurrer. If it is a culvert, the court erred in overruling the demurrer. Is the structure described in the petition a bridge within the meaning of that term as used in the Code, § 95-1001? That is the controlling question in this case. It was ruled by this court in Ellis v. Floyd County, 24 Ga. App. 717, 718 (3) ( 102 S.E. 181), "The word `bridge' in the statute of this State, giving a right of action against a county for defective construction, means a bridge used as an instrumentality for travel along a highway and for crossing streams or ravines." The word "bridge" has been defined by the courts in a number of our States. In Smith v. Hamilton, 231 Ill. App. 482, a bridge is defined as follows: "A `bridge' is a structure usually of wood, stone, brick, or iron erected over a river or other watercourse, or over a ravine, railroad, etc., to make a continuous roadway from one bank to the other." The same definition of a bridge is laid down in Dubourdieu v. Delaware Tp. of Wyandotte County, 106 Kan. 650 ( 189 P. 386), and in Madison County Commissioners v. Brown, 89 Ind. 48, and in Town of Tolland v. Willington, 26 Conn. 578. Also see, vol. 5, page 800, Words Phrases (Perm. ed.), and 8 Am. Jur. 910, § 2. In 11 C. J. S. 983, Bridge, § 1, a definition similar to those above is given, viz: "Broadly speaking, however, a bridge may be defined as a structure of wood, iron, brick, or stone, ordinarily erected over a river, creek, pond, or lake, or over a ravine, railroad, canal, or other obstruction in a highway, so as to make a continuous roadway and afford to travelers a convenient passageway from one bank to the other."
4. The structure here involved and alleged to be a bridge is made of concrete. It is 28 feet and 6 inches in length along said highway, is 37 feet and 8 inches wide, is 9 feet high, and spans a stream 26 feet wide. The opening under the structure is 7 feet in height. It has a concrete floor 12 inches thick, and there are two head walls on each side of the structure 1 foot and 4 inches in width, and running lengthwise along the top of the structure, and the surface of the roadway over the floor of the structure is flush with the top of the head-wall and rises in height approximately 8 inches from the side to the center of the roadway. This structure of concrete erected over Thigpen Creek, so as to make a continuous roadway and to afford to travelers a convenient passageway from one bank to the other of said stream, is, in our opinion, a bridge, and we so hold as a matter of law in this case.
The fact that the structure had 12 inches of dirt and asphalt paving on top of its concrete floor does not constitute or make it a culvert, instead of a bridge. The cases of Parker v. Spalding County, 134 Ga. 69 ( 67 S.E. 404), Hubbard v. County of Fulton, 144 Ga. 363 ( 87 S.E. 281), and Montgomery County v. Seaboard Air-Line Ry. Co., 41 Ga. App. 130 ( 152 S.E. 261), cited and relied on by the plaintiff in error, are clearly distinguishable on their facts from the present case, and the rulings in those cases are without application to the facts alleged in this case.
5. It follows that the court did not err in overruling the demurrer to the petition.
Judgment affirmed. Felton and Parker, JJ., concur.