Opinion
34371.
DECIDED FEBRUARY 14, 1953. REHEARING DENIED FEBRUARY 28, 1953.
Action for damages; from Savannah City Court — Judge Heery. September 11, 1952.
Alexander Wells, Edward M. Hester, for plaintiff in error.
Rogers, Zeigler, Terry Coolidge, contra.
The petition, alleging that the death of the plaintiff's daughter was caused by the negligence of the employees of the defendant municipal corporation while engaged in the performance of a ministerial function of repairing or improving its streets, set out a cause of action, and it was not error to overrule the general demurrers thereto.
DECIDED FEBRUARY 14, 1953 — REHEARING DENIED FEBRUARY 28, 1953.
Leon Johns brought this suit against the Mayor and Aldermen of the City of Savannah to recover, as his damages for the homicide of his child, the value of the services which she would have rendered during her minority, and medical and funeral expenses. The allegations of his petition were substantially as follows: The defendant is a municipal corporation under the law of Georgia and is the governing authority of the City of Savannah in Chatham County, Georgia. The plaintiff is the father of Caroline L. Johns, who was killed at the intersection of New York Avenue and Delaware Avenue in the City of Savannah, between the hours of 1:45 p. m. and 2:30 p. m. on April 4, 1951. Caroline was then three years of age, rendered services to her father of an alleged value, was strong and in good health, and lived with her parents on New York Avenue in Savannah. Shortly before the time of her death, Caroline was playing with several other children in a vacant lot at the southwest corner of New York and Delaware Avenues. She proceeded to cross from this corner of the intersection to the northeast corner thereof, but was killed when a motor truck driven by H. A. Poole ran over her. She had proceeded to a point in the street where the front wheels of the truck, when it struck her, straddled her body, but the right rear wheel of the truck ran over her head and crushed it. Poole did not apply the brakes to the truck when it was apparent, or should have been apparent in the exercise of ordinary care, that Caroline was in front of the truck, nor did he apply brakes when the truck first started over her body. Had he done so at either time, he could have stopped the truck before killing Caroline. The truck was owned by the defendant, and Poole, the operator thereof, was working as an employee of the defendant. The truck was loaded with sand to be dumped in Delaware Avenue to fill in a place that had become low and where a hole had formed. Sand was being put there to repair this low place. The hole ranged in depth from one to six inches below the ordinary level of Delaware Avenue, was eight feet long, and was from eight to nine feet wide. It was brought about by the defendant's repairing of Delaware Avenue by scraping and grading on the day of Caroline's death. The low place that was to be filled in with sand had been filled in with dirt two months previously, but the fill was pulled out in scraping and grading the street, and the sand in the truck was to replace the fill. The truck had come to a stop on New York Avenue before entering the intersection with Delaware Avenue. Poole, before driving the truck into the intersection, waited until he was given an all-clear signal by J. E. Lubeck, also an employee of the defendant. Lubeck signaled to Poole, and thereupon turned his back and did not look in the direction of the truck until he heard the screams of an onlooker as the truck passed over Caroline's body. The truck was then passing northeastward into Delaware Avenue with the sand to be used to repair that street. Both streets referred to are public streets in the City of Savannah; Delaware Avenue is 40 feet wide and New York Avenue is 60 feet wide. Small children were accustomed to play in the vacant lot at the southwest corner of this intersection and to cross the intersection in going to and from the vacant lot. There was nothing to prevent Lubeck from seeing Caroline when she left the vacant lot and proceeded across the intersection, and there was nothing at any time between the truck and Caroline; in crossing the intersection she was in plain view of Lubeck and Poole, had either of them looked, but neither of them kept a lookout to avoid hitting her. New York Avenue runs east and west, and Delaware Avenue runs north and south. When the truck struck Caroline, it was being driven at a low rate of speed, between five and eight miles per hour, and was on the south side of New York Avenue, just west of the center line of Delaware Avenue. When Lubeck signaled the truck to enter the intersection, he was standing on the east side of Delaware Avenue, from 40 to 45 feet north of New York Avenue. Had Lubeck been keeping a proper lookout, he could have seen. Caroline or prevented her from getting in front of the truck. Had Poole been keeping a proper lookout, he could have seen Caroline in the intersection and could have blown a horn or given some other signal to warn or deter her, and could have avoided running over her. Poole could have stopped the truck before its rear wheel ran over Caroline's head, but did not do this or make any attempt to do so. No other motor vehicle was at the intersection at this time, and both streets were free of traffic at their intersection. Caroline's death was proximately caused by the following particular acts of negligence: (a) Lubeck, after giving his driver a signal to proceed, turned his back on the truck and failed to warn the driver of Caroline's approach in front of the truck. (b) Lubeck failed to keep a lookout for persons entering the intersection after the truck had started into the intersection. (c) Lubeck failed to see Caroline enter the intersection. (d) Poole continued to drive the truck into the intersection after Lubeck had turned his back to him. (e) Poole failed to see Caroline in front of the truck. (f) Poole failed to stop the truck after Caroline was in front of it and before the truck struck her. (g) Poole failed to stop the truck after the front of the truck passed over Caroline and before the right wheel of the truck struck her. (h) Lubeck failed to signal Poole to stop the truck when Caroline was approaching the front of the truck. (i) Poole, in turning from New York Avenue to his left into Delaware Avenue, did not swing wide of the left curb and pass beyond the center line of such intersection as provided by the following municipal ordinance of the City of Savannah: "Any person or persons operating or driving any vehicle upon the streets and lanes aforesaid, when turning to the right, shall keep close to the right curb and when turning into a street to the left, shall swing wide of the left curb, passing beyond the center of the intersection streets." (j) Poole did not sound a horn or give other warning upon entering the intersection. (k) No proper lookout was kept to avoid striking Caroline with the truck. (l) No proper care was exercised to avoid running over Caroline with the truck after her situation of peril had or, in the exercise of ordinary care, should have become known. These acts of Poole and Lubeck were done in the prosecution of the defendant's business and within the scope of the employment of Poole and Lubeck in making repairs to Delaware Avenue. The plaintiff alleged his damages, and that a written claim had been presented to the defendant within six months from Caroline's death, which claim set forth the time, date, and place of the death, the negligence causing the death, and the amount of the damages claimed by the plaintiff. A copy of the statement of claim was attached to the petition, and it was alleged that the defendant refused to pay or settle the claim.
The Judge of the City Court of Savannah overruled the defendant's general demurrer to the petition, and the defendant excepts to that judgment.
1. The defendant contends, and cites some outside authorities in support of its contentions, that the maintenance of streets is and was at common law a governmental function of a municipality; that a city's liability for negligence in failing to repair or remove defects or obstructions in its streets is imposed by a statute (Code, § 69-303) which is in derogation of the common law; and that such statutory liability cannot be extended to cover injuries caused by the negligence of the city's employees engaged in making street repairs or improvements when such negligence does not result in a defective condition of the street.
However, the law is well settled in this State "that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by night as well as by day; and if it fail to do so, it is liable for damages for injuries sustained in consequence of such failure." Brown v. Mayor c. of Milledgeville, 20 Ga. App. 392 (1) ( 93 S.E. 25). It seems that the liability of a municipality for failure to keep its streets and sidewalks in repair existed at common law, for Code § 69-303 was taken from the decision of our Supreme Court in Mayor c. of Montezuma v. Wilson, 82 Ga. 206 ( 9 S.E. 17), which, as stated in Hammock v. City Council of Augusta, 83 Ga. App. 217, 218 ( 63 S.E.2d 290), "was a statement of the Supreme Court's conception of the common law at that time, but the principle had already been stated in previous decisions. [Citations.]" It is also stated in the Hammock case that Code § 69-303 "is not in derogation of the common law, but is a codification of a common law principle as announced by our Supreme Court." In this connection, see also Parker v. Mayor c. of Macon, 39 Ga. 725 (99 Am. D. 486); Mayor c. of Atlanta v. Perdue, 53 Ga. 607; Chapman v. Mayor c. of Macon, 55 Ga. 566; City of Greensboro v. McGibbony, 93 Ga. 672 ( 20 S.E. 37).
It has also been held that a municipal corporation's function of keeping its streets in safe condition for travel is ministerial, and that the city is liable for its negligence in performing improperly or in failing to perform such duties. Mayor c. of Savannah v. Jones, 149 Ga. 139 ( 99 S.E. 294); Mayor c. of Milledgeville v. Holloway, 32 Ga. App. 734 ( 124 S.E. 802); Hammock v. City Council of Augusta, 83 Ga. App. 217, supra. In each of those cases, the negligence of the city was such as to affect some condition of the street or sidewalk which brought about an injury, but we see no reason to make a distinction in the present case, where the alleged negligence of the city's employees occurred while they were engaged in the performance of a ministerial function of the city and where, instead of causing the injury and death of the plaintiff's daughter indirectly by means of an obstruction or a defective condition of the street, it caused the injury directly.
It is further contended by the defendant that the repair or improvement of the street as alleged in the present case was for the protection of health by filling a place where water stood in the street, and was therefore done in the exercise of a governmental function. However, it is alleged that the hole had been brought about by the defendant's scraping and grading of the street on the same day, when the old fill was removed and had to be replaced. It does not appear that water ever stood in the hole or low place, or became stagnant and a menace to health. The truck which struck the plaintiff's daughter was being used in the performance of a ministerial function by the defendant, and therefore the alleged grounds of the defendant's liability in this respect are sufficient.
2. It is also argued that the petition fails to show any negligence on the part of the defendant city or its servants. It is alleged in the petition that the plaintiff's daughter was in plain view of Poole, the driver of the truck, and of Lubeck, who motioned Poole to come ahead and make a left turn into Delaware Avenue, and that there was nothing to prevent them from seeing her as she went diagonally across the intersection. Whether, in the exercise of ordinary care, the defendant's employees should have seen the plaintiff's daughter and stopped the truck before striking her was a question to be submitted to a jury. Such questions of negligence and proximate cause are ordinarily for a jury, except in plain and undisputable cases. The petition shows that the plaintiff's daughter was proceeding from the truck driver's right across the intersection in front of him, but it does not appear that he could not have seen her, or that Lubeck could not have seen her, and so it is for a jury to say whether they should have seen her, had they been in the exercise of ordinary care.
3. The petition set out a cause of action, and it was not error to overrule the general demurrer thereto.
Judgment affirmed. Felton and Worrill, JJ., concur.