Parker v. Mayor of Macon , 39 Ga. 725 ( 1869 )

Brown, C. J.

As the charter of the City of Macon confers upon the Mayor and Council full power and authority to keep the streets, lanes, alleys, side-walks and public squares, of the city in good order, and to remove any buildings, posts, steps, fences, or other obstructions or nuisance, which is a power conferred upon public officers for the public good, it is their duty to exercise it, and to keep the streets, lanes, alleys and sidewalks in such condition that persons passing over or along them may do so with safety and convenience. To this end it is the duty of the city authorities to remove any nuisance from the streets or side-walks; and anything that endangers the life of a person passing along the side-walk is a nuisance which they are bound to abate. As, for instance, a deep pit dug by the side-walk, so near it that a person passing along the street at night is in danger, by a misstep, of falling into it, anything hanging over the street in such manner that it may fall upon a person passing and do him a serious injury.

2. But it is insisted, in this case, that the wall being private property, at the edge of the side-walk, was not embraced within the objects which the charter gives the city authorities power to remove, as it was not m the street or side-walk. We think this too narrow a view of the subject. If the city is bound to fill up a pit dug by the edge of the side-walk, or to fence it off, so that no one may be injured by it, or to remove anything hanging over the side-walk, which may work injury to those passing by, why is it not bound to remove a crumbling wall standing so near the side-walk as to fall upon it ?

In this case the wall was too stories high, and had stood exposed to the weather for several months after the house was burnt. It was immediately upon the edge of the side-walk, and could not fall in that direction without falling upon it. And the declaration alleges that it was from its character and position insecure, and endangered the lives of passengers upon the street. If so, it was a nuisance, which it was the duty of the Mayor and Council to take the necessary steps to abate, and having failed to do so, they are liable for the damages. Whether the proof upon the trial may sustain the declaration in this particular we know not, but the demurrer admits, for the purposes of this investigation, that this allegation is true.

It was suggested by counsel for the defendant in error that the wall was not in fact insecure or in a crumbling or dilapidated condition, but was blown down by a tempest, which caused the injury to the plaintiff of which he complains. This fact, if true, does not appear from the pleadings in the case as it is now before us. If the wall was firm and solid, and did not, under any ordinary circumstances, endanger any person parsing by, and it was thrown down by tempest, or other act of God, and the plaintiff was injured by the fall, the city is not liable. The Court and jury will judge of the character of the wall by the evidence on the trial. We think the rule above laid down fully sustained by the authorities cited in the well prepared brief of Mr. Bacon, who argued this case for the plaintiff in error.

Let the judgment of the Court below be reversed.