Opinion
33334, 33335.
DECIDED JANUARY 27, 1951.
Action for damages; from Crisp Superior Court — Judge Gower. July 27, 1950.
Benjamin Zeesman, for plaintiffs.
Haas Hurt, Charles D. Hurt, Rex T. Reeves, Wright Reddick, for defendant.
The owner of a store building abutting a public sidewalk in a municipality is not liable to a member of the public for injuries resulting from a defect in such sidewalk which was not caused or created by the abutting owner.
DECIDED JANUARY 27, 1951.
Case No. 33334 is on exception to the sustaining of the general demurrer to the petition of the husband for damages for loss of services of his wife as a result of the alleged negligence of the defendant, the negligence charged to the defendant being the same in case No. 33335. Case No. 33335 is on exception to the sustaining of the general demurrer to the petition of Mrs. L. P. Rhodes for damages for personal injuries alleged to have been caused by the defendant's negligence. Both petitioners charged that the defendant owned and operated a store building abutting a sidewalk in the City of Cordele, Georgia; that the defendant owned the sidewalk abutting the store building; that Mrs. Rhodes was injured when she stepped into a hole in the sidewalk abutting the store building; and that the defendant had ample notice of said hole and its defective condition and should have fixed it.
In the absence of an allegation to the contrary, the petition will be construed against the pleaders as alleging that the sidewalk abutting the defendant's store building was a public sidewalk. In such case the sidewalk is subject to an easement in favor of the public for the use of the sidewalk, even if ownership of the fee to the sidewalk is in the abutting property owner. Hanbury v. Woodward Lumber Co., 98 Ga. 54 ( 26 S.E. 477); Harrold Brothers v. Mayor c. of Americus, 142 Ga. 686 ( 83 S.E. 534); Long v. Faulkner, 151 Ga. 837 ( 108 S.E. 370). The law places upon a municipality the duty of keeping its sidewalks safe for travel in the ordinary manner. Code, §§ 69-301, 69-303; Hammock v. City of Augusta, 83 Ga. App. 217 ( 63 S.E.2d 290). The placing of such responsibility upon municipalities relieves an abutting property owner unless he caused or actively participated in causing the obstruction or defect in the street or sidewalk. Ellis v. Southern Grocery Stores, 46 Ga. App. 254 ( 167 S.E. 324); Goldman v. Clisby, 62 Ga. App. 516 ( 8 S.E.2d 701); 63 C.J.S., 218, 227, § 861; 41 A.L.R. 212. Cases cited by the plaintiff in error involve cases where the abutting owner created or caused the defect in the sidewalk, and are therefore not applicable to the facts of this case.
The court did not err in sustaining the general demurrers to both petitions and in dismissing the actions.
Judgments affirmed. Sutton, C. J., and Worrill, J., concur.