Opinion
36998.
DECIDED JANUARY 21, 1958. REHEARING DENIED JANUARY 31, 1958.
Action for damages. Floyd Superior Court. Before Judge Hicks. October 31, 1957.
Oscar M. Smith, John W. Maddox, for plaintiff in error.
Maddox Maddox, Wright, Rogers, Magruder Hoyt, contra.
In an action against a county under Code (Ann.) § 95-1001 a petition which does not base the county's liability upon negligent maintenance of an old bridge or a new one built in its stead is subject to general demurrer.
DECIDED JANUARY 21, 1958 — REHEARING DENIED JANUARY 31, 1958.
Shellie Stewart filed a suit for damages against Ledbetter-Johnson Co., Inc., and Floyd County.
The petition alleged in part: that on or about 9:30 p. m. on May 12, 1956, the petitioner was injured by the concurrent negligence of the defendants; that what is commonly known and referred to in the locality as the Summerville Road, and also known as Highway 27, is a public road and highway leading from Rome in a northerly direction and to Summerville in Chattooga County; that at the time complained of a new highway was in process of being built and at the place complained of, practically parallel with the Summerville Road; that at a point approximately one mile and one-half north of Armuchee, the defendant, Ledbetter-Johnson Co., Inc., in the course of the construction of the new highway, had removed a culvert under the old roadway and in so doing had thrown up dirt across the highway leaving an embankment of approximately three feet high and a hole beyond the embankment of approximately ten feet in depth, the embankment being within fifty feet of the southerly end of the culvert: that at the time hereinafter set forth it was contemplated that a bridge would be put in at the place where the culvert was removed, but the same had not been done; that the place herein referred to constituted and was a bridge within contemplation of Section 95-1001 of the Code of Georgia; that there was no sign or warning of any kind or character at all near the obstruction on the highway except one small sign approximately eighteen inches in width and having the words thereon "dead end"; that the road and highway was a public road and highway and had never been closed in accordance with law; that on occasion herein complained of, that he had been to Armuchee, driving his automobile and that when he left the village of Armuchee he was traveling along the old highway, and the one which he had used for many years prior thereto, at a rate of speed of approximately forty miles per hour; that as a result thereof, he did not see the obstruction in the road until it was too late for him to stop his automobile, and as a result thereof he hit the embankment and went over the same and off the other side; that on account of the facts hereinbefore alleged the place constituted what in law is known as a defective bridge and that Floyd County is responsible for each and every act of Ledbetter-Johnson Co., Inc.; that the defendants were guilty of negligence per se in that: they cut a ditch across the highway and piled dirt at the edges of the ditch in violation of law; they cut a ditch across the highway and piled dirt upon the edges thereof obstructing the highway when the highway and road had not been closed in any manner known to the law; that the defendants were guilty of negligence in that: by cutting the ditch across the road and highway and piling the dirt upon the edge thereof, the same was rendered dangerous for persons traveling thereon in automobiles; that no sufficient warning or signs were placed upon the road to warn the travelers that the ditch had been cut across the highway or that the dirt had been piled upon the edge thereof; that there were no signs of warning of any kind or character to indicate or warn persons using the highway of the existence of the ditch and obstruction therein; that the defendants failed to post or erect warnings of the defective and dangerous condition of the road and highway; that said obstruction and hole described in paragraph 7 of the petition constituted and is a continuing nuisance; that the culvert had been erected to afford unrestricted vehicular traffic on the highway, over a gully existing therein, and for the purpose of removing and allowing free passage of water in the gully and under the highway; that he did not see the sign, the same being to the right of the highway in the direction in which he was traveling.
Floyd County filed general and special demurrers to the petition which were overruled. Exception is made to this ruling.
In this opinion Floyd County will be referred to as the defendant and Shellie Stewart will be referred to as the plaintiff.
1. The plaintiff insists that the defendant is liable under Code (Ann.) § 95-1001 which provides: "When the contract for a public bridge, ferry, or causeway is let, the contractor's bond shall be conditioned also to keep it in good repair for at least seven years, and as many more years as may be covered by the contract. Provided, that such contract may be let under existing laws without requiring the aforesaid condition in the contractors' bonds, if in the opinion of the commissioners of roads and revenues, or of the ordinary in counties where there are no such commissioners, it would be to the public interest to dispense with said condition in said bond: Provided, however, that in every case the county shall be primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities. The term `bridges' in this section shall be defined as a structure erected to afford unrestricted vehicular traffic over an obstruction in the public highways of the State, including rivers, streams, ponds, lakes, bays, ravines, gullies, railroads, public highways and canals; the term bridge as defined in this section shall include the approaches to the structure previously defined within 50 feet of either end of said structure except where the bridge itself measures 100 feet or more and in said event within 100 feet of either end of said structure."
The basis of this contention is that the dirt embankment placed upon the highway was within fifty feet of the place where the culvert had been removed and constituted the negligent maintenance of the approach to a bridge. The petition alleged that a culvert was removed from beneath the highway in contemplation that a bridge would be built in its stead. The petition also alleged that the place referred to was a bridge, and the culvert was placed beneath the highway to afford unrestrictive vehicular traffic, and to allow free passage of water under the highway. These allegations, while in form conjunctive, were alternative allegations because a culvert and a bridge and are not the same, even though they may serve the same purpose. Montgomery County v. Seaboard Air Line Ry. Co., 41 Ga. App. 130, 131 (2) ( 152 S.E. 261); Parker v. Spalding County, 134 Ga. 69 ( 67 S.E. 404); Hubbard v. County of Fulton, 144 Ga. 363 (1) ( 87 S.E. 281).
The case of Berrien County v. Vickers, 73 Ga. App. 863, 868 ( 38 S.E.2d 619) defines a bridge in language very similar to that employed in Code § 95-1001. In that case a structure "28 feet and 6 inches in length along said highway, is 37 feet and 8 inches wide, is 9 feet high, and spans a stream 26 feet wide. The opening under the structure is 7 feet in height. It has a concrete floor 12 inches thick, and there are two head walls on each side of the structure 1 foot and 4 inches in width, and running lengthwise along the top of the structure, and the surface of the roadway over the floor of the structure is flush with the top of the head-wall and rises in height approximately 8 inches from the side to the center of the roadway" was held to be a bridge, but the description found there is no precedent for holding that a culvert installed ten feet below the road constituted a bridge.
In Overton v. Alford, 210 Ga. 780, 782 ( 82 S.E.2d 836) it is held: "Where pleadings are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader. Accordingly, where two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is to be treated as pleading no more than the latter, under the rule that the pleadings must be construed most strongly against the pleader."
Construing the petition most strongly against the pleader it must be assumed that the structure in question was a culvert and not a bridge.
A bridge not having been constructed to replace the culvert which had been removed, under the holding in Johnson County v. Hicks, 73 Ga. App. 238 ( 36 S.E.2d 116) we are constrained to hold that the defendant is not liable under Code § 95-1001 because such liability must be based on the negligent maintenance of either an old bridge or a new one built in its place. Warren County v. Evans, 118 Ga. 200 ( 44 S.E. 986).
2. The petition also alleged that the ditch across the highway constituted a continuing nuisance; assuming that it was, this would not constitute a cause of action in this case. Felton v. Macon County, 43 Ga. App. 651, 653 ( 159 S.E. 730); Bibb County v. Green, 42 Ga. App. 552 ( 156 S.E. 745); Floyd County v. Fincher, 169 Ga. 460, 462 ( 150 S.E. 577).
The judge erred in overruling the general demurrer as to the defendant, Floyd County.
Judgment reversed. Felton, C. J., and Nichols, J. concur.