Kennedy v. Mayor of Savannah , 9 Ga. App. 760 ( 1911 )

ON MOTION ROB REHEARING.

It is contended in-the motion for a rehearing that this court overlooked the decision in the case of Atlanta etc. Ry. Co. v. Gravity 93 Ga. 369 (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145), in which the court says (quoting from 16 Am. & Eng. Enc. of Law, 411-412) : “In order to maintain an action for a negligent injury, it must appear that there was a legal duty from the person inflicting the injury to the person on whom it was inflicted, and that such duty was violated by a want of ordinary cafe on the part of the defendant. It is not sufficient that there be a general duty to the public which is violated, but in all civil cases the right to enforce such duty must reside in the individual injured 'because of a duty due laim from his injxirer,-or he can not recover.” 5Ye think that a careful reading of our opinion, previously filed will show that we have not overlooked this doctrine. We took then, and now t.ake, the view that the city owed a duty to Kennedy in his individual capacity as a traveler upon the highway, — the duty of keeping the highway reasonably safe,- — -and that while this is a general duty owing to all the public, it is a specific duty as to each memher of the public when that individual puts himself in such a relation as to be able to invoke it in a particular case. The doctrine was applied in the Gravitt case to the extent of holding that as to crossing laws, the general duty of giving signals and checking the train, which the railway companies owe, could not be invoked by one not attempting to use the crossing, but injured at another place: or, to state it differently, that the general duty imposed upon railroad companies as to crossings exists only in favor of such members of'the general public as are using or are .attempting to use the public crossing, and that Gravitt, who was not using or attempting to use the crossing, had no right to invoke as «negligence a failure of the railroad company to comply with the crossing law. So, in this case, if Kennedy had not been a traveler upon the highway, he could not invoke ns negligence the fact that the city had neglected the duty of keeping the highway in repair. The court in the Graritt case did not mean to say that because the duty imposed upon railroad companies as to public crossings is a duty owing to the general public, an individual who was about to use the crossing could not claim the benefit of it. Likewise, in this case, we have held that though the duty owing by the city as to keeping its streets in repair is a general duty owing to all the public, still any member of the public who at the time happens to be lawfully traveling over the particular street can invoke the duty, and that Kennedy was at the time of his injury such a traveler.

Rehearing denied.