Opinion
36269.
DECIDED JULY 12, 1956.
Tort; municipal liability, nonsuit. Before Judge Paschall. Whitfield Superior Court. April 5, 1956.
C. H. Dalton, for plaintiff in error.
Hardin McCamy, Carlton McCamy, contra.
1. The documentary evidence offered by the plaintiff had no probative value insofar as the material allegations of her petition were concerned, and accordingly the trial court did not err in excluding the same.
2. The only question for decision on the grant of a nonsuit is whether the plaintiff has proved her case as laid. Where, as here, a petition alleges that a municipal corporation is liable for injuries resulting from its negligence in failing to maintain a sidewalk in reasonably safe condition, these allegations are not supported by proof which shows merely that the city allowed members of the public to walk in an area between the paved surface of a street and a fence enclosing a city football stadium, but that the city has never maintained such area as a sidewalk and has, on the contrary, maintained deep drainage ditches across it for a long period of time, so that persons using such area customarily walk out in the street at the point where the drainage intersections occur.
DECIDED JULY 12, 1956.
Edith Kesot filed an action for damages against the City of Dalton in the Superior Court of Whitfield County for injuries sustained by her in falling in a drainage ditch crossing an area between a fenced football field and the curbing and pavement of West Crawford Street within the city. The petition alleged that she was walking "along and over the sidewalk prepared by defendant for the use and convenience of the general public and which was being used by the general public as such . . . the said sidewalk where she was walking is now and has been in use by the general public for over three years or longer, which fact was well known by defendant." It is further alleged that the defendant's employees sometime prior to September 3rd, 1955, the date of the plaintiff's fall, constructed several storm sewer openings on the north side of West Crawford Street and failed to cover the sewer openings, "which are in the center of said sidewalk", and further permitted these openings to grow up with grass and weeds, so that the openings were not visible. Negligence is alleged in failing to keep said sidewalk in a reasonably safe condition for use by the public, in allowing an excavation 5 feet deep to be left open in the center of a well traveled sidewalk without covering it or having a rail, light, grating, or some other warning of its dangerous condition; in allowing a hazardous condition to exist after knowledge thereof, and in allowing the excavation to grow up with grass and weeds where it could not be detected by the plaintiff. The answer denied that any sidewalk existed along the north side of West Crawford Street, but alleged that, between the north curb of this street and a fence bordering the Dalton High School Football Field "There is an unimproved area, which has not been dedicated to street or sidewalk uses, and which has not been maintained and improved by the city for such uses; that said area is not a part of the public street, nor is it a public sidewalk." It admitted that it had constructed stormsewer openings in this area, and denied that they were made in, across, or along any sidewalk.
Upon the trial of the case it appeared that West Crawford Street in the block in question was paved; that no sidewalk had ever been laid thereon; that some feet back from the street there was a fence forming one boundary of the football field; that there was a sidewalk ending at the main gate of the stadium east of the location in question; that there was curbing on the street; that the curbing had been put there around 8 years before, at which time the city cut two drainage ditches leading to conduits under the street, which ditches were open 3 or 4 feet across and 4 or 5 feet deep and the same were grown up in grass; that members of the public having occasion to do so used this unimproved area on the north side of the street for walking to such extent that photographs showed a well defined path, which path curved to the street and back at the locations of the ditches; that persons using it had to step out in the street at this point to avoid the ditches; that the plaintiff was familiar with this area since she had traversed it several times weekly for over a year; that on the evening in question it was dark enough for automobiles to have their lights on and the football field was lighted; cars were parked even with the curb along the side of West Crawford Street and the south side of the street was torn up because of the laying of pipes; that the plaintiff and her granddaughter walked along the unimproved area on the north side of the street, knowing that the ditches were there, but because of the lights, the parked cars, and the grass in the ditch she misjudged the location of the ditch and fell into it.
At the conclusion of the plaintiff's evidence the trial court granted the defendant's motion for nonsuit. Error is assigned on this judgment and also on the sustaining of objections to the introduction of certain documentary evidence offered by the plaintiff.
1. The plaintiff offered in evidence a 1925 ordinance of the City of Dalton creating liens on lots abutting West Crawford Street for assessments "in connection with the paving of Crawford Street from Thornton Avenue west to its intersection with Ridge Street" together with a report on assessments, and a deed to the City of Dalton showing its ownership of the abutting land on which the football stadium is located. Admitting that the introduction of such evidence would have shown ownership of the land in question by the city, and would also have shown, under the authority of Hancock v. Rush, 181 Ga. 587 ( 183 S.E. 554), that the assessments were made by the city for street purposes, which assessments would also have been sufficient to empower the city to use a part of the funds for laying a sidewalk, the fact remains that there is no evidence that the city ever did attempt to lay a sidewalk on the land in question or to maintain it for the use of pedestrians. Ownership of the land alone is not controlling in this case, for it is not brought on the theory that the city owed any duty by reason of ownership alone or that the presence of the plaintiff on its property was in the capacity of an invitee, but it is brought on the theory that a sidewalk had been prepared by defendant for the use of the public, after which the city failed to maintain the same in reasonably safe condition. Accordingly, the admission of this evidence would not have helped the plaintiff's case and its exclusion was not error.
2. "In order to bind a municipal corporation for the care of a strip of land offered by an abutting owner as a sidewalk, acceptance by the proper city authorities must be shown. The acceptance may be express or implied. If express, it can be shown only by the minutes of the official tribunal; if implied it can be shown only by proof that the sidewalk was worked and used under authority of the council, or other body having such matters in charge. . ." "If implied acceptance be relied upon, it may be shown by proof that the street or walk was used or worked as a highway under the authority of the council; mere use by members of the public is not sufficient." (Emphasis added). Mayor c. of Americus v. Johnson, 2 Ga. App. 378 (4), 381 ( 58 S.E. 518). See also Atlantic Coast Line R. Co. v. Sweatman, 81 Ga. App. 269 ( 58 S.E.2d 553); Maddox v. Willis, 205 Ga. 596 (4) ( 54 S.E.2d 632); Hames v. City of Marietta, 212 Ga. 331 (4) ( 92 S.E.2d 534). And in Collins v. Mayor c. of Macon, 69 Ga. 542 (4), it was held as follows: "Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts showing an assent that property should be so used and enjoyed. [However] the mere use of the corporate property of a city by it for a particular purpose, is not a dedication of such property for that purpose forever."
It does not appear over what period of time persons traveled by foot over the strip of land on the north side of Crawford Street and it may be assumed that they have done so since a street was first laid out in that vicinity. This alone is not sufficient to show acceptance by the city of the area for sidewalk purposes so as to charge it with liability for negligence in failing to maintain a sidewalk in a reasonably safe condition in the absence of any evidence whatever that the city ever intended or accepted the strip of land for this purpose. Under the rules of law relating to the dedication of land for public purposes, no acceptance is shown, and without acceptance there can be no liability. Considering the city merely as the owner of the land, it is apparent that it had for at least 8 or 9 years acquiesced in members of the public walking over it, but had at the same time converted at least a portion of the same strip to an inconsistent use — by constructing the deep ditches it had removed at least certain portions of the area from practical use for pedestrian purposes, so that those persons who continued to use it detoured out into the street at the point where the ditches crossed the pathway. The construction and use of open drainage ditches over a long period of time being inconsistent with use for sidewalk purposes, and there being no evidence that the city had ever maintained the area for sidewalk purposes, even though it would have been within its power to do so, the plaintiff failed to prove the essential allegations of her petition. "When a court passes upon a motion for a nonsuit, it decides only one question, that is, do the allegations and the proof correspond?" Clark v. Bandy, 196 Ga. 546, 559 ( 27 S.E.2d 17). The trial court correctly granted the motion on the theory that the plaintiff offered no evidence to show the city ever set the area apart for a sidewalk, and this court, in affirming the judgment, will confine itself to the questions passed upon by the trial court. It accordingly becomes unnecessary to decide whether or not the evidence also showed the plaintiff to be so lacking in ordinary care for her own safety as to preclude recovery.
We are not here holding that a pedestrian walkway must necessarily be paved in order to give a person injured thereon a right of action, but only that, where it is alleged the walkway is a part of the sidewalk and street system of a municipal corporation there must be some evidence that it was intended and maintained by the city for such use. In Harris v. City of Rome, 59 Ga. App. 279 ( 200 S.E. 337) cited by the plaintiff in error, it was held that a petition alleging that the slant and drainage of a street had, because of rains, caused a ditch to form over the unpaved sidewalk alongside the street, stated a cause of action as to a plaintiff injured by stumbling therein and falling into a chasm on the far side of the walkway. There was no question, on demurrer, as to whether or not the sidewalk formed a part of the city street system.
The trial court did not err in granting the nonsuit.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.