City Council v. Hudson , 88 Ga. 599 ( 1891 )

Lumpkin, Justice.

1. In March, 1887, the City Council of Augusta owned and controlled a bridge across the Savannah river, connecting the city with the State of South Carolina, and charged tolls for the use of the same. The plaintiff’s action seeks to make the city council liable for injuries sustained by him resulting from the defendant’s alleged negligence in failing to provide a suitable railing to the abutment of the bridge on the Carolina side. It was insisted by counsel for plaintiff in error that under the law of South Carolina, a municipal corporation of that State would not be liable for an injury of this kind, and that accordingly, as this injury occurred in South Carolina, the plaintiff could not recover. It is unnecessary to determine what the law of South Carolina is on this subject. The City Council of Augusta certainly has no municipal or governmental functions to perform beyond the limits of this State. So far as keeping and maintaining this bridge for gain is concerned, this corporation entered the State of South Carolina to engage in a private business and enjoy the profits thereof. Consequently it must perform the duties and assume the burdens incident to carrying on this business. Whatever immunity, if any, from liability to actions of this sort it may have possessed at home, as a part of the government, the same was lost when it divested itself of the attributes of sovereignty by undertaking such a business in another State. The doctrine here asserted is well supported by authority. See Dillon’s Municipal Corporations, §§966, 980, 981, 982, 983, and cases cited; Bank of the U. S. v. Planters’ Bank of Ga., 9 Wheat. 904; Briscoe v. Bank of Kentucky, 11 Pet. 257; W. & A. R. R. Co. v. Taylor, 6 Heiskell (Tenn.), 408, 414.

2. The plaintiff having alleged that there was no guard-rail on the abutment of the bridge on the South Carolina side and that in consequence of the absence thereof he was injured, it is necessary, of course, to authorize a recovery, that he should prove these allegations to be true. The court among other things charged “ that he must show there was no guard-rail connected with the bridge.” This charge required the plaintiff to prove more than was necessary, in this respect. It was entirely immaterial for the purposes of the case whether or not the abutment on the Augusta side, or the bi'idge itself, had railings upon them, the presence or absence of such railings having nothing whatever to do with the injuries sustained by the plaintiff.

3. The plaintiff, having ,proved his injury and the negligence of the defendant by which it was caused, made out a prima fade case. "Whether or not by the exercise of proper diligence he could have prevented the injury, was a matter of defence.

4. The proposition stated in the fourth head-note requires no further comment. Judgment affirmed.