Hubbard v. County of Fulton

Atkinson, J. (After stating the foregoing facts.) The first count does not distinctly allege whether the so-called “bridge,” described as being 3% or 4 feet wide, constructed over the branch and extending the full width of the road, existed as a bridge or whether it was merely a part of the construction of the road intended for a culvert. If the former, it was converted into the latter by construction of the road-bed, and it was of that character at the time the plaintiff received his injury. In other words, if prior to the construction of the fill there was a road in the course of which was the “bridge” mentioned above, and the effect of making the dirt-fill was to extend the road-bed of dirt over the bridge at a height of six or seven feet above the level of the bridge and on both sides thereof for the full width of the road, as alleged, the result would be a transformation of the road and the creation of a culvert. For definitions of a culvert see 12 Cyc. 990, and cases cited. In Parker v. Spalding County, 134 Ga. 69 (67 S. E. 404), it was held: “1. A county is not liable to suit unless there is a law which in express terms or by necessary implication so declares. Millwood v. DeKalb County, 106 Ga. 743 (32 S. E. 577). 2. Under the provisions of the Political Code, § 603, declaring, ‘Pro [366] vided, however, that in every case the county shall be primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities,5 the county was not liable for the injuries set forth, as the injuries were not caused by reason of any defective bridge within the meaning of the word ‘bridges5 employed in such section.55 The decision in that case was one affirming the judgment of a trial court sustaining a general demurrer to the petition in an action against a county on account of a defect in an alleged bridge forming a part of the public road. It was alleged: “The bridge was over a branch, and water constantly ran under and through it. ‘In constructing said bridge the county authorities built the same out of terra cotta about 24 inches in diameter, and in the upper end of the same they made a solid stone abutment about three feet high and about eight feet long, so as to draw all the water to and force it through this opening under the bridge of 24 inches. That the county authorities covered the terra cotta bridge with dirt so as to conceal the same.5 The opening was inadequate to carry the water collecting above it, and as the water ‘ran over the bridge it washed out the dirt, leaving a hole seven (7) feet long, eighteen inches wide, and twelve inches deep, on the top and side of the terra cotta bridge.5 55 .It thus appears that the decision was made to turn on whether the hole which caused plaintiff’s injury was a defect in a bridge within the meaning of the statute, and it was held as matter of law not to be so. We think the rulings in that case are decisive of the questions in this. Under a proper construction of the petition, the drainway into which the plaintiff stepped was no part of a bridge within the meaning of the statute. Relatively to the question under consideration, the drainway should be regarded merely as if it were a hole in the road-bed where there was no bridge. The second count proceeds on the hypothesis that the fill was merely a causeway, and seeks to charge the county with liability on account of its defective condition created by the presence of the unprotected drainway. The demurrer was properly sustained as to both grounds. The ease of Howington v. Madison County, 126 Ga. 699 (55 S. E. 941), involved the question of abutments of a bridge necessary to enable the public to use the bridge, which is a different case from that made by the allegations of the petition [367] now under consideration. In this case we are holding that under the allegations of the petition there was no bridge. However, the reasoning in the case cited is in harmony with the ruling we are making, and nothing is said in conflict therewith. Judgment affirmed. All the Justices concur.