City of Thomson v. Poss

Felton, C. J. The petition alleged a cause of action against the city. It alleged a defect in the street which rendered it unsafe for purposes of travel by ordinary modes and methods, and that such defect had existed for three weeks; therefore it alleged a violation of a duty owed to the general public and constructive notice of the defect. Mayor &c. of Buford v. Medley, 58 Ga. App. 48 (1) (197 S. E. 494). The defendant’s main argument is that the petition showed Mrs. English was guilty of such negligence in not discovering and avoiding the consequences of the defect as would bar a recovery. This contention is without merit. While it was not necessary for the plaintiffs to negative Mrs. English’s negligence, they di.d allege that she was operating her automobile in a careful manner and was free of fault or negligence in running into the hole or excavation. The petition did not show that Mrs. English, in the exercise of ordinary care, could have discovered the defect in the street and avoided running into it. It was alleged that the hole or excavation was of such nature that it could not be detected by the traveling public in advance of [665] running into it. Nothing was alleged to contradict such allegation. The court did not err in overruling the general demurrer to the petition. Judgment affirmed. Quillian and Nichols, JJ., concur.