Opinion
40164.
DECIDED JUNE 25, 1963.
Action for damages. Cobb Superior Court. Before Judge Manning.
Crowe, Shipley Martin, Arthur L. Crowe, Jr., for plaintiff in error.
Frank D. Schaffer, contra.
The petition alleging negligence on the part of the city by reasons of the fact that its authorized employees left a wooden stake exposed 10 inches above the ground immediately in front of a mailbox located between the sidewalk and the street curb in a plot between the sidewalk and the curb owned and maintained by the city as a thoroughfare, stated a cause of action as against a general demurrer.
DECIDED JUNE 25, 1963.
Mrs. Jessie R. Haygood instituted an action against the City of Marietta to recover for injuries alleged to have been suffered by her when she was tripped by a wooden stake driven into the ground in front of a U.S. Government letter box in a plot of ground between the sidewalk and the street when she approached the letter box to mail a letter. The petition alleged in part as follows: "2. Defendant, acting by and through its duly authorized agents, has injured and damaged your petitioner in the sum of $47,331.16, all of which will be more fully shown hereinafter. 3. Petitioner shows that defendant has been duly notified in writing of petitioner's claim in accordance with the provisions of Section 69-308, Code of Georgia Annotated, and Chapter 69-3 Georgia Code Annotated and said code sections have been fully complied with, and copy of said notice is attached to this petition, marked Exhibit A, and made a part thereof. 4. The notice above shown was served upon the clerk of defendant on the 30th day of November, 1961, and defendant has failed and refused to act upon same within 30 days thereafter. 8. Petitioner then proceeded easterly on the said sidewalk for a distance of approximately 12 feet at which point she turned to her right toward Forest Avenue and stepped off of the said sidewalk onto a dirt strip approximately 7 feet in width, said strip separating the sidewalk from Forest Avenue. 9. At the point where petitioner stepped upon a said dirt strip, there is located a U.S. Post Office Department letter box designed for the purpose of having mail deposited therein by the public. 10. The dirt strip separating Forest Avenue from the sidewalk on the north side of Forest Avenue, and upon which the said letter box is located, and upon which petitioner was injured, was owned by and maintained by defendant as part of a public thoroughfare on July 8, 1961, and at all times mentioned in this petition. 11. At the point where petitioner entered upon the said strip, said strip is well worn, well used, level, smooth and on the same level with the sidewalk, the same being the only way that persons may reach the letter chute of said letter box in order to deposit mail therein. The chute of said letter box is facing in a westerly direction. 12. Petitioner approached the letter box, deposited mail therein and as she turned to return to her automobile, she stumbled over and collided with a wooden stake driven in the ground immediately in front of said letter box. 13. Said stake was driven into the ground approximately centered with the letter chute of said letter box and approximately 18 inches westerly of said letter chute. 14. Your petitioner shows that she had not seen the stake prior to her colliding with it, and did not look down at her feet upon approaching the letter box, as she was accustomed to the smooth, level approach to said letter box as she regularly and frequently deposited mail therein. 15. Said stake measured approximately 1 by 2 inches by approximately 14 inches long, was made of wood, was protruding from the ground approximately 10 inches and was battered, split, splintered and sharp on its edges and top. 16. The said stake was placed there by employees and agents of defendant, the name or names of said agents or employees being unknown to your petitioner but well known to defendant. 17. Said agents of defendant knew or should have known by the exercise of ordinary care, that the stake which injured petitioner was placed at a point which was continually used by the pedestrian public. 18. The agent or agents of defendant had placed said stakes at said location in the performance of ministerial duties, same being the maintenance, construction and alteration of public streets, sidewalks and street rights of way. . . 34. Your petitioner shows that the sole and proximate cause of her injuries, pain, suffering, medical expenses, loss of earnings and loss of employment as above shown was due to the negligence of the defendant acting by and through its agents in the performance of ministerial duties in the following particulars, to wit: (a) In placing a sharp and dangerous stake upon the right of way of a public street where they knew or by the exercise of ordinary care should have known that said portion of the right of way was continually used by the pedestrian public. (b) In placing a sharp and dangerous stake immediately in front of a U.S. Post Office letter box, which was used by the public for the depositing of mail. (c) In failing to warn your petitioner of the presence of a sharp and dangerous stake placed on a portion of a public street right of way known by defendant through its agents to be constantly used by the pedestrian public. (d) In failing to warn your petitioner of the presence of a sharp and dangerous stake placed immediately in front of a U.S. Post Office letter box. (e) In failing to remove a sharp and dangerous stake from a portion of a public street right of way known by defendant through its agents to be constantly used by the pedestrian public. (f) In failing to remove a sharp and dangerous stake from immediately in front of a U.S. Post Office letter box. (g) In placing a sharp and dangerous stake on a public street right of way where same was known or should have been known in the exercise of ordinary care to be likely to produce injury to your petitioner. (h) In leaving said stake protruding too far out of the ground. (i) In not leaving said stake protruding far enough out of the ground." The general demurrer of the City of Marietta was sustained and the petition dismissed, to which judgment the plaintiff in the trial court excepts.
We think the petition set forth a cause of action against a general demurrer. Kesot v. City of Dalton, 94 Ga. App. 194 ( 94 S.E.2d 90), cited by the city, dealt with evidence, not pleading. The petition in this case alleges that the dirt strip on which the mailbox is located was owned and operated by the city as a part of a public thoroughfare at the time of plaintiff's alleged injuries. This is an allegation of fact. It was not necessary for the plaintiff to allege how the city acquired title or ownership. The allegations are sufficient to charge the city with the duty to keep the sidewalk and the ground between the sidewalk and the mailbox in a reasonably safe condition. In Kesot the evidence showed that the city did not maintain the strip of land in question as a place for public travel. The duty of a city as respects sidewalks extends to all of the sidewalks intended for travel by the public as a thoroughfare, and is not confined to keeping in a safe condition a special part only of a sidewalk which happens to be most generally used. City of Atlanta v. Milam, 95 Ga. 135 ( 22 S.E. 43); City Council of Augusta v. Tharpe, 113 Ga. 152, 155 ( 38 S.E. 389); City of Atlanta v. Hampton, 139 Ga. 389 (4) ( 77 S.E. 393). It would seem that this court considers a grass plot between the sidewalk and street curb a part of the sidewalk at least where using the grass plot as a thoroughfare is not forbidden or restricted. City of Atlanta v. Hawkins, 45 Ga. App. 847 (5) ( 166 S.E. 262). At any rate the instant petition sufficiently alleges a duty upon the city to keep in a reasonably safe condition the strip of land between the sidewalk and mailbox. There is no duty on the plaintiff to negative her contributory negligence, and the facts alleged do not demand the conclusion that the plaintiff was barred by her own negligence in the first instance or that she could have avoided the city's negligence by the exercise of ordinary care. In considering a plaintiff's diligence it is not necessary for the court to confine itself to distractions caused by the defendant. In fact there does not have to be what is commonly known as a "distraction." The answer lies in the facts of each case. In this one the plaintiff alleges frequent trips to the mailbox and that she did not look to the ground in front of the mailbox. It is a question for the jury to decide whether the plaintiff's conduct in looking directly at the mailbox and the place where letters are inserted constituted the exercise of ordinary care. Redding v. Sinclair Refining Co., 105 Ga. App. 375 ( 124 S.E.2d 688). See also McFarland v. City of McCaysville, 39 Ga. App. 739 ( 148 S.E. 421); Colonial Stores v. Owens, 107 Ga. App. 436 ( 130 S.E.2d 616).
The court erred in sustaining the general demurrer and dismissing the action.
Judgment reversed. Eberhardt and Russell, JJ., concur.