Clay v. City of Rome , 74 Ga. App. 754 ( 1947 )

The allegations of the petition show that at the time of the alleged injury the agents and employees of the City of Rome were engaged in a governmental function in an attempt to extinguish a fire. This being true, the municipality was not liable for the negligent acts of its agents and employees in connection therewith.

DECIDED FEBRUARY 7, 1947. The plaintiff sued the City of Rome for recovery of damages alleged to be due him for an injury which he received by the negligence of the agents and employees of the city. To the petition the defendant filed a general demurrer. The court sustained the demurrer. On this judgment the plaintiff assigns error. The material portions of the petition read:

"3. That on or about 8:30 p. m., March 17, 1946, petitioner was riding his motorcycle in a southerly direction on North Broad Street in said City of Rome, and at a rate of speed approximately 25 miles an hour and when approximately in front of what is known as the Jennings Funeral Home on said street, he struck a fire hose lying on the surface of the pavement in said street, and as a result thereof was thrown from said motorcycle and his right wrist fractured, and he also suffered a severe and deep cut over his right eye, making it necessary that the doctor attending him take five stitches to close said cut, and bruising and cutting him on other parts of his body.

"4. He shows further that said North Broad Street is paved at said place with concrete which is of a dull gray color and that said fire hose so located in said street was of approximately the same color.

"5. He shows further that said street is in constant and continual use by vehicles thereon and practically all of the travel leading to and from what is commonly known as North Rome and the Sixth Ward of the City of Rome and the business section of said city is over and along said street.

"6. That there is located on the West side of said North Broad Street and near the place hereinabove referred to a fire plug which was on the edge of the sidewalk of said street and not in the traveled portion thereof.

"7. Petitioner shows further that at said time that said hose was attached to said fire plug and was full of water, and when so filled is approximately four inches in diameter.

"8. He shows further that at said time the fire department of the City of Rome had so attached said hose to said fire plug and was using the same in connection with extinguishing a fire on Davis Street in said city.

"9. He shows further that said Davis Street intersects with said North Broad Street North of said fire plug and where said fire hose was located in said street.

"10. That said hose extended approximately 20 feet from the Western edge of said North Broad Street and out into said street and across said pavement and curved back northerly and into said Davis Street, when the same could have been laid along the Western side of said street and at the edge of the curbing so as not to have obstructed said North Broad Street.

"11. Petitioner shows further that as he drove his said motorcycle along said street that he had no knowledge of any fire, that the fire department of the City of Rome was in said vicinity, or that said hose had been laid over and along said street.

"12. He shows further that in so laying said hose in said street, the same constituted and was an obstruction in said street approximately four inches in height.

"13. He shows further that at said time it was dark, and there was no street light or other light at or near the same, and that he did not observe or see said hose lying on said street.

"14. He shows further that there was nothing to indicate or show that said hose was lying in said street, and no warning or signal of any kind or character was given to him or to other persons using said street of said hose being thereon, and that there was no police officer or other person or agent of said city to direct traffic and to warn of the presence of said hose.

"15. Petitioner shows further that said hose had been lying in said street for such a period of time that said defendant in the exercise of reasonable care and caution should have known that the same was so located in said street and particularly at said place on said muchly used street." The petition further alleges that the plaintiff was in the exercise of ordinary care for his own protection.

The demurrer reads: "The defendant says that plaintiff's petition does not, as a whole, nor do any of its several paragraphs or parts show, or state a cause of action against this defendant." The only question presented is whether at the time of the alleged injury the employees and agents of the City of Rome were engaged in a governmental function to the extent that the defendant would not be liable in damages for their negligent acts in performing this governmental function. It is conceded by the plaintiff that the maintenance and operation of a fire department by a municipality is a governmental function, and that in a proper case the municipality is not liable for the negligence of its agents and employees. It is contended by the plaintiff that the provisions of the Code, § 69-301 do not apply to the facts of this case. That section reads: "Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they shall be liable."

It is also contended that the decisions of the appellate courts in construing that section do not apply to the allegations of fact in the instant case. Counsel for both parties admit that there have been many decisions rendered by our appellate courts on the question before us. They cite very few of those decisions to maintain their respective contentions. We agree with them that there are many such decisions which will be found annotated under said Code section. We do not think that we can add anything to what has been said on the subject. Since we have set forth verbatim the material allegations of the petition and the demurrer, suffice it to say that at the time of the alleged injury the agents and employees of the City of Rome were engaged in the performance of a governmental function. It therefore follows that the City of Rome is not liable for the negligent acts of its agents and employees in this case. We will, however, cite the cases which the plaintiff relies on for a reversal in order that anyone interested may compare the facts and reasoning in those cases to the facts and conclusions in the instant case. Those cases are: Hammond v. Atlanta, 25 Ga. App. 259 (103 S.E. 39); McFarland v. McCaysville, 39 Ga. App. 739 (148 S.E. 42); Cornelisen v. Atlanta, 146 Ga. 416 (91 S.E. 415); City Council of Augusta v. Cleveland, 148 Ga. 734 (4, 5) (98 S.E. 345).

When we read these decisions in their entirety, they are not authority for the contentions of the plaintiff. We think they are authority to sustain the judgment on the demurrer. Counsel for the city rely on only two cases: Hammond v. Atlanta, supra, and Love v. Atlanta, 95 Ga. 129 (22 S.E. 29, 51 Am. St. Rep. 64). We find no authority which in our opinion touches the question before us which would authorize the reversal of the judgment.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.