Summary
In Duren v. City of Thomasville, 125 Ga. 1 (3) (53 S.E. 814), the Supreme Court said: "Neither the superior court nor this court can consider questions raised in a petition for certiorari that were not before the trial judicatory.
Summary of this case from Brown v. City of ValdostaOpinion
35782.
DECIDED SEPTEMBER 13, 1955. REHEARING DENIED OCTOBER 6, 1955.
Action for damages. Before Judge Lilly. Thomas Superior Court. April 28, 1955.
Titus, Altman Johnson, for plaintiff in error.
Alexander, Vann Lilly, Cain Smith, contra.
The petition set forth a cause of action against the defendants, and the trial court erred in sustaining the general demurrers thereto.
DECIDED SEPTEMBER 13, 1955 — REHEARING DENIED OCTOBER 6, 1955.
Mrs. Lee Duren brought an action against the City of Thomasville, Sing Motor Implement, Inc., and Malcolm T. Wilkes, trading as Sing-Wilkes Service Station, for injuries she received when she fell on a described public sidewalk in the City of Thomasville at about 10:30 a. m. on January 30, 1954. Attached as an exhibit to the petition, was a notice of claim filed with the City of Thomasville as provided by Code § 69-308, and a copy of a letter signed by the city manager declining the plaintiff's claim. The petition, in addition to the facts shown above, alleged that the defendants trading as Sing-Wilkes Service Station owned the property abutting on the paved sidewalk where the plaintiff fell; that for some two and one-half months prior to January 30, 1954, these defendants had been operating a service station, and with the approval of the City of Thomasville had changed the elevation of the said sidewalk so as to facilitate the entry of automobiles into the service station, and had covered the property of the service station next to the sidewalk with small loose rocks or pebbles; that the automobiles of the customers trading at the service station and the trucks of the defendants who owned and operated the service station had caused a number of the small loose rocks to be precipitated from the service-station property onto the said sidewalk; and that this condition had continued for two months or more before the plaintiff was injured. The plaintiff, while walking along the aforesaid described sidewalk, and while using all care and diligence, stepped upon some of the small rocks or pebbles, lost her footing, and without being able to regain her balance, by reason of the fact that the small rocks would roll under her feet, fell and was injured as set forth in the petition. The rocks were of the approximate color and blended with the color, of the sidewalk in such a manner as not to be readily perceptible to the plaintiff. The defendants were charged with constructive knowledge of the condition of the sidewalk and with being negligent in permitting the loose rocks or pebbles to remain on the sidewalk where they constituted loose, dangerous obstructions to pedestrians. They were also charged with being negligent in not taking the necessary precautions to keep the small rocks or pebbles inside the driveway of the service station. The plaintiff's injuries were described, and process and service were prayed for as well as judgment in the amount sued for. The defendants filed separate demurrers to the petition, and the trial judge sustained their general demurrers. The plaintiff excepts to this judgment.
The parties in this case base their argument primarily on two decisions of the court. The defendants contend that the case is directly in point with the decision in City of East Point v. Mason, and Crowe v. Mason, 86 Ga. App. 832
(72 S.E.2d 787), while the plaintiff contends that the decision in Mason v. Crowe, 88 Ga. App. 191 ( 76 S.E.2d 432), is controlling. In the first case above cited, this court held that no cause of action was set forth against either the city or the property owner on the theory that the petition showed the gravel or sand was carried onto the sidewalk by natural causes, and not by the negligence of either of the defendants, and further that the petition did not show that the defendants were guilty of any act of omission. In the other decision above cited, the allegations were somewhat different, and the petition alleged that the property owner was negligent in that his trucks carried some of the gravel or rocks onto the sidewalk, and that the property owner and the city were negligent in not taking some action after they had knowledge of the fact that gravel was accumulating on the concrete sidewalk.
The defendants contend that as a matter of law the petition shows that the plaintiff was guilty of such contributory negligence as to be precluded from any recovery, since the petition shows that it was 10:30 a. m. when she fell and was injured, and the petition does not show any reason why she could not have seen the "small, loose rocks" on the sidewalk. The petition shows, in addition to the above, that the rocks on which the plaintiff stepped and then fell were approximately the same color as the sidewalk and not readily perceptible to the plaintiff, and that she was exercising ordinary care at the time she fell. "Questions as to diligence and negligence, including contributory negligence and what constitutes the proximate cause of an injury complained of, are peculiarly questions for the jury, and this court will not solve them on general demurrer unless they appear palpably clear." Mason v. Frankel, 49 Ga. App. 145 (2) ( 174 S.E. 546). Therefore, the defendants' argument that the trial court's judgment sustaining the general demurrers to the petition should be affirmed on this ground is without merit, since it is not palpably clear that negligence on the part of the plaintiff was the proximate cause of the injury complained of.
The petition alleged that the "rocks" on the sidewalk created a hazardous condition, and, "even a minor defect causing an injury is sufficient to authorize a submission to a jury of the question of whether or not a defendant municipality was negligent in permitting it to remain." Mason v. Crowe, supra, p. 194. Actual knowledge on the part of the city is not necessary. "It is the duty of a municipal corporation to keep its streets and sidewalks in a reasonably safe condition; and if a defect has existed in a sidewalk for such a length of time that by reasonable diligence in the performance of their duties the defect ought to have been known by the proper authorities, notice will be presumed, and proof of actual knowledge will not be necessary in order to render the municipality liable for injuries occasioned thereby." Ellis v. Southern Grocery Stores, 46 Ga. App. 254 (1) ( 167 S.E. 324), and cases cited. "It is a jury question as to what length of time a defect or dangerous condition must exist in a sidewalk or street to charge a municipality with knowledge of negligence." City of Dalton v. Joyce, 70 Ga. App. 557, 561 ( 29 S.E.2d 112), and cases cited. Accordingly, the petition set forth a cause of action against the defendant City of Thomasville.
"An owner of property abutting upon a street or highway is not, by virtue of being such owner, liable for defects in the street or highway. But this rule has no application where the owner of abutting property creates a defect in a street or highway or a nuisance abutting therein. In the latter event he is liable, not because he owns the abutting property, but because he creates or maintains the thing from which injury results." Ellis v. Southern Grocery Stores, 46 Ga. App. 255, supra, headnote 2. In the present case, it is alleged that the defendants trading as the Sing-Wilkes Service Station placed on the property abutting on the sidewalk where the plaintiff was injured small, loose rocks or pebbles, which were carried onto the sidewalk by the automobiles of customers trading with these defendants and by their own trucks. Accordingly, it must be said, construing the petition on general demurrer, that the owners of the property abutting on the sidewalk created the hazard referred to in the petition. Mason v. Crowe, supra. The petition set forth a cause of action against the defendants, and the trial court erred in sustaining the general demurrers thereto.
Judgment reversed. Felton, C. J., and Quillian, J., concur.