Mayor of Savannah v. Waldner , 49 Ga. 316 ( 1873 )

Trippe, Judge.

1. The municipal authorities of the city of Savannah are by law vested with authority over the streets in the city, and with power to remove all nuisances, obstructions or erections, of any kind, along or upon any street, lane, way or place therein: New Code, section 4849. From this authority arises the obligation on them to keep the streets in a safe condition for public travel and use, and the consequent liability to a civil action by any person specially injured by neglect to discharge this specific duty: Dillon on Municipal Corporations, section 789. The same author, in his able and elaborate work on that subject, further says, in section 791, this duty u rests primarily as respects the public upon the corporation, and the obligation to discharge it cannot be evaded, suspended, or cast upon others by any act of its own.” It has never been doubted but that the corporation is liable for injuries produced by the unsafe condition of the streets, and which were rendered so by its direct act or authority, when it was not acting through independent contractors: 39 Barb., 329; 1 Seld., 369; 4 Wall, 189. So, also, for neglect to keep the streets in repair, even by the removal of dangerous defects occasioned by the wrongful acts of others : 39 Barb., supra, 9 N. Y., (5 Seld.,) 456 ; 2 Black, 422; 5 Dutcher, 544. It is true that this last position is qualified, and properly so, by the condition that in such cases it is necessary to show that the corporation had notice, or that the circumstances were such as to charge it with notice of the defect which caused the damage. This principle is essential to secure the safety of the streets and the protection of the public. Were it not so, there would be no guaranty for the repair of any defect or the removal of any obstruction, however dangerous, which any trespasser might wantonly place in the streets. If such a trespasser were to dig a dangerous excavation in or across a street, he, it is true, might be liable for damages caused thereby. But it would be of little satisfaction to the public to feel that they could only have recourse on some private party, probably insolvent, possibly unknown. The only reasonable and safe rule is, as has been so often held, that the duty resting on the corporation to keep the streets safe and in repair, carries with it, inevitably, the obligation to protect the public against danger from such obstructions by their removal, or by abating them with reasonable diligence. If this be so, does it not furnish a test to determine the whole question as to the liability of the corporation in this case? Granting that the corporation did not sustain to the primary contractor, Van Horn, or to the sub-contractors, McCrohan & ICirlin, the relation of principal and agent, or of master and servant, still it may be liable. This concession may, of course, yield the question that its liability could be rested upon the principle of respondeat superior. Yet that does not necessarily relieve the city from responsibility. For if the corporation is liable for negligence in not protecting the public against dangers caused by a wrong-doer, why should it be excused from negligence in permitting dangerous obstructions created, at least, by its authority, though it may be by independent- contractors, to hazard the safety of the street traveler.

Suppose the independent contractor to make a sewer across a street, were only partially to execute the work, should dig a deep excavation in the street and abandon the job. Or suppose, by accident or death, after doing that much work, he could do no more. What would be the duty of the city ? Could it remain inactive and leave the excavation open until the representative of its independent contractor could be appointed, after, it might be, a considerable iapse of time, and claim immunity because the work was not being done by its own servant or agent, for whose default it could only be held responsible? No one would contend that such is the law. Still less could it be maintained that, in the case of an abandonment of the work by the cohtractor, the corporation had the right to permit it to remain permanently in the condition it was left. It will be admitted at onee that it -would bo the duty of the proper authorities, with due diligence, to have the work completed by a new undertaking, or to have the excavation filled without delay. How, then, can it be said that a corporation may, by engaging a contractor who is not subject to its authority and control, be relieved from its liability, and permit the public to be exposed to dangerous obstructions placed in the streets and negligently left, without proper barriers or signals to give warning to those who may be compelled to travel the streets ?

The duty and liability resting on a municipal corporation in such cases is deducible from the authority vested in it over the streets, and the obligation flowing therefrom, to protect the public against nuisances or dangerous obstructions in the highways of the city. And Judge Dillon, in his work-already quoted, says, in section 792, that the doctrine of respondeat superior does not apply where the contract directly requires the performance of a work intrinsically dangerous, however skillfully performed. In such a case, the party authorizing the work is justly regarded as the author of the mischief re-; suiting from it, whether he does the work himself or lets it out by contract. To the same purport are also the decisions in 17 New York, 104; 7 New York, (3 Selden,) 493, and in numerous other cases.

In Parker vs. The Mayor and Council of Macon, 39 Georgia, 725, it was held that, under the power conferred on the Mayor and City Council over the streets, lanes, etc., they are bound to keep them in such condition that it is safe and convenient to pass them, and in case of failure, they are liable to any person injured by their neglect. In the same case, it was further held that they were liable to a person injured by the fall of a high brick wall of a burnt house, on private property, at the line of the sidewalk, if they were negligent in the discharge of their duty to have the wall abated or made secure.

Upon principle and authority, we hold that if the builders of the sewer in this case, negligently left it unguarded, by not having proper barriers, or lights, or other protection against danger, and it was so permitted to continue for an unreasonable or unnecessary time by the municipal authorities, who had notice, or there are facts from which notice could be reasonably inferred, they are liable for injuries resulting from such neglect to perform their duty. This general principle covers all the questions raised in the motion for a new trial touching this question, and it is not, therefore, necessary to notice them in detail.

2. We think the Court erred in the charge to the jury, in saying, “that in estimating the damages, they could take into consideration the expenses to which plaintiff had been put in and about his suit.” There was no evidence of what was such expense. If any, it could have been shown what it was. A plaintiff cannot claim for what is capable of almost exact proof, without furnishing the jury some testimony to arrive at the measure or amount of the claim. Proof of what are the physician’s bill, and other expenses growing out of damage received, is always required to entitle a recovery therefor. So it should be as to the expenses referred to in this part of the charge. Such expenses are only recoverable “ when the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense New Code, section 2942. As it is impossible to tell how this charge may have affected the amount given in the verdict, and as it was calculated to, and pi’obably did, cause the jury to increase the amount of damages rendered, we are compelled to order a new trial, and to reverse the judgment of the Court refusing it.

Judgment reversed.