Opinion
39360, 39361.
DECIDED MAY 28, 1962.
Actions for damages. Cobb Superior Court. Before Judge Henderson.
Frank D. Schaffer, Scott S. Edwards, Jr., Edwards, Bentley, Awtrey Bartlett, for plaintiffs in error.
Garvis L. Sams, Reed, Ingram Flournoy, Conley Ingram, contra.
1. The petition stated a cause of action based on negligence against the defendant city and its alleged subsidiary corporation.
2. Even though the petition charged that the defendant subsidiary corporation was created to have charge of the function of the city which was being carried out at the time of the negligent acts, since the petition alleged that both defendants cooperated in the particular activity, it charged a duty resting upon each defendant and a breach by each. In such circumstances the defendants were joint tortfeasors.
DECIDED MAY 28, 1962.
These are companion cases. Plaintiff brought action against the City of Marietta and the Board of Lights Waterworks of the City of Marietta, seeking damages for the injuries allegedly sustained by the negligence of these defendants.
The petition charged that in the latter part of 1958 or early part of 1959 a water line was installed along the southerly side of Clay Street by the defendants; that after the installation of the water line, holes were dug by defendants at various points along the line; that this was an area ordinarily and customarily used by pedestrian members of the public; that defendants knew the area had been used by pedestrians for a long period of time; that on February 5, 1959, at approximately 11 p. m. petitioner walked along the area and that as she reached a point 560.3 feet east of the intersection of the southerly side of Clay Street, with the center line of Manget Street, she stepped into one of the holes not knowing of its existence; that at the time and place it was dark and she could not and did not see the hole; that she was in the exercise of ordinary care and could not avoid the injury; that the hole was approximately 14 inches in width and approximately 12 inches in depth; that the hole was dangerous in character, unlighted and without any barrier to warn or protect pedestrians; that the hole was made by defendants or their agents, employees or servants acting within the scope of their employment; that the defendant board was created by the General Assembly as a subsidiary public corporation of the City of Marietta to have charge of the creation, building, operation and supply of water for the city and to have all the power previously vested in the council and mayor of the city for this purpose; that the defendants were negligent in failing to fill the hole immediately after having made it and causing the hole to be made at that place and in failing to place lights at or around the hole; that the hole was made pursuant to the purpose for which the defendant board was created through its employees and agents, acting within the scope of their employment, and in furtherance of the duties of the board, along with the city, through its agents and employees, acting within the scope of their authority, who were cooperating with the defendant board in this undertaking, since the hole was dug in a public street in the City of Marietta; that the defendant board had a duty to fill the hole upon the completion of the work for which it was dug, and to warn the plaintiff and general public of the existence of the hole before that portion of the street was repaired for travel and use by the public; that the defendant city knew the hole existed and had a duty to protect the plaintiff and the general public by repairing the hole and by placing appropriate lights, signs, or other warning devices to inform the plaintiff and the general public that the portion of the street was unsafe until the hole had been filled and the street had been repaired. The petition further charged that, in accordance with Code Ann. § 69-308, within six months of the happening of the injury petitioner presented a written claim to the city showing the time, place and extent of the injury, as well as the negligence which caused the same, and asked for an adjustment; that no adjustment has been made; and more than thirty days have elapsed since the presentation of the written claim.
Both defendants filed general demurrers to the original petition and renewed demurrers to the petition as amended. After a hearing, the trial judge overruled the general demurrer of each defendant.
The defendants, respectively, assign as error the overruling of their general demurrers.
1. The defendant board contends that the petition is fatally defective for the reasons that it fails to allege that the board was in control of the street, or that it was under any contractual duty to place warnings at the site, or to set forth any facts relieving the city from any duty imposed by law to repair the streets or place warnings, signs or barriers, citing Evans v. Scott Co., 43 Ga. App. 332 ( 158 S.E. 584).
In the Evans case the petition was held properly dismissed on general demurrer since it failed to allege that the defendants were in control of the highway or they had any contractual duty to place signs, lights, flags, or barriers to warn of its condition or to set forth facts relieving the State Highway Board or the county from any duty imposed by law with respect to placing and maintaining such warnings. However, Evans is distinguishable from the present case since the petition here charges that the defendant board "had a duty to fill the hole upon completion of the work for which it was dug and to warn plaintiff and the general public of the existence of the hole in Clay Street before it was filled and before that portion of said street was repaired for travel and use by the public." Furthermore, the petition charges that the defendant board was a subsidiary public corporation of the City of Marietta having charge of the creation, building, operation, and supply of water for the city and had "all the powers previously vested in the Mayor and Council of the city for this purpose."
It is also averred that the hole was made by the defendant board along with the defendant city through the agents and employees of each acting within the scope of their authority and that the defendant board and the city were cooperating in this work since the hole was dug in a public street of the city.
As to each defendant the amended petitions charge that each had the duty to eliminate the dangerous condition in the street, and that each had the duty to place barriers, warnings, lights, signs or other devices to warn users of the street of this condition. There is thus alleged a duty resting upon each defendant, and the breach by each of this duty to the plaintiff's injury.
2. The city contends that the petition is fatally defective for the reason that it fails to allege that the city had any knowledge of the existence of the holes or had any part in the creation, building, operation and digging of the holes. However, this position is untenable since the amended petition charged that the hole into which the plaintiff stepped was made by the employees and agents of both the defendant board and the defendant city, which was cooperating with the board in the undertaking, since the hole was dug in the public street, and that such agents and employees were acting within the scope of their authority. It is elementary that the knowledge of employees or agents acting within the scope of their authority is attributable to the employer or principal.
The city further urges that since it is alleged that the defendant board was created by the General Assembly as a subsidiary corporation of the City of Marietta to "have charge of the creation, building, operation, and supply of water for the City of Marietta" and to have all the powers previously vested in the mayor and council for this purpose, the petition clearly shows that the city did not participate in any manner whatsoever in the construction or maintenance, or have any control of the alleged operations.
We disagree.
While the petition does charge that the board had the powers previously vested in the mayor and council for the creation, building, operation, and supply of water for the city, we do not construe this assertion as alleging a complete delegation of the city's authority and control over the streets. Furthermore, the petition affirmatively charges that both defendants dug the hole and both had the duty to fill it and to place warning signs, lights or barriers. On demurrer the defendants admitted these allegations which are sufficient with the other allegations in the petition to state a cause of action against each defendant.
It is elementary that the city has a duty to keep its streets and sidewalks in a safe condition for travel and if it does not use ordinary care to do so, it is liable for damages resulting from its failure. City of Oglethorpe v. English, 60 Ga. App. 5 ( 2 S.E.2d 733).
Thus, if either had performed the duty allegedly resting upon it, the plaintiff's injuries would not have been sustained. However, the failure of a third person to perform a duty owing to another to protect him from harm threatened by the defendant's negligence is not a superseding cause of the other's harm. 2 Restatement, Torts, § 452 (1934). If the rule were otherwise, each could plead the negligence of the other as a defense and thus the plaintiff would have no remedy. "The third person's failure to perform his duty in this respect makes him concurrently liable with the negligent actor for any harm which results from the actor's negligence and which would have been prevented by the performance of the third person's duty." Ibid., Comment a, and Shermer v. Crowe, 53 Ga. App. 418 ( 186 S.E. 224). See also Louisville c. R. Co. v. Ellis, 54 Ga. App. 783 ( 189 S.E. 559) and 2 Restatement, Torts, op. cit. § 439 (1934), Comment a.
Since the petition charges the defendants each with having the same duty to the plaintiff and the breach thereof, a cause of action was stated against each of them.
The trial court properly overruled the general demurrer of each defendant.
Judgments affirmed. Felton, C. J., and Hall, J., concur.