
    3374.
    Whidden v. City of Thomasville.
    Decided December 19, 1911.
   Hill, C. J.

1. The judgment sustaining the general demurrer to the petition is a final judgment, from which a writ of error will lie.

2. Where a bill of exceptions recites that the court sustained a general demux-rex-, and that “the plaintiff in error excepted to the order sus- . taining said general demurrer, and assigns the same as errox-,” the assignment of error is sufficient. O’Neal v. Miller, 9 Ga. App. 180 (70 S. E. 971).

3. In a suit to recover damages from a municipal cox-poration for an alleged injury resulting from a defective construction of a street, it is not necessary to allege either actual or constructive notice of such defective construction. Civil Code (1910), § 898; Mayor etc. of Montezuma v. Wilson, 82 Ga. 206 (9 S. E. 17, 14 Am. St. R. 150).

4. The allegations of the petition, in foi’m and substance, set forth a cause of action, and the court erred in sustaining a general and special demurrer thereto. Judgment reversed.

Action for damages; from city court of Thomasville — Judge W. H. Hammond.

March 27, 1911.

The petition alleges, that the defendant damaged the plaintiff in the sum of $200, by reason of negligence hereinafter set forth; that a .claim in writing (a copy of which is set forth) was presented to the defendant by the plaintiff, in which payment of the amount of the damage was demanded, and that payment was refused. The remaining allegations are as follows: (Paragraph 5) “Your petitioner shows that at a certain point on Oak street, within the limits of the city of Thomasville, the defendant had, for a number of years prior to and until a short time prior to the injury complained of, maintained a bridge over a certain branch which crosses Oak street; that this bridge was constructed by the use of heavy timbers, which were attached to posts on either side of the branch, so as to form a solid wall on each side thereof, and then a top or covering was attached, 'on a level with the street, so as to form a platform or bridge across said branch; that said bridge as thus constructed left an aperture or opening underneath, about five feet in width and about four and one half or five feet high, which enabled all of the waters flowing down said branch and also all the waters that flowed from eastward and from a westward direction along Oak street to this point, even in case of excessive rainfall, to pass off without damaging the street. (6) Your petitioner shows that said City of Thomasville, a short time prior to the injury complained of, removed the top or covering from said bridge and inserted in the bed of said branch, between the wooden walls of the bridge, a drain-pipe 15 inches in diameter, and then filled in on either side and on top of said drainpipe with earth, up to the level of the street, and this drain-pipe was the only means provided by the city for carrying off the waters that accumulated at that point. (7) Your petitioner shows that said city has so laid out, constructed, and graded said Oak street that the surface water flows down hill, from both the eastward and westward, along said street to the point where said branch intersects the street at the mouth of said drain-pipe, and there intermingles with the water of the branch, all of which water finds its only outlet thence through said drain-pipe. (8) Your petitioner shows that in time of ordinary rainfall said drain-pipe was entirely inadequate to convey the water that accumulated at the mouth of said drain, and that the defendant, in the construction of said drain, had negligently failed to place any header or other device at the mouth of said drain, to prevent the waters thus accumulating at this point from washing under and around said drain-pipe and underneath said street; that as a result of this the waters had undermined said street, by forcing an outlet underneath the street by washing out the soil with which said drainpipe had been covered. (9) Your petitioner shows that on the 12th day of October, 1910; while a certain mule was being driven with due care along said Oak street by a servant of the petitioner, and while said mule was passing over said drain-pipe, that, unknown to your petitioner and to said servant, the said earth over and around said drain-pipe had been so undermined by the waters that the same caved in while said mule was in the act of passing over the same, and caused said mule to be thrown down and killed. (10) Your petitioner alleges that said injury was occasioned [by] and due solely to the negligence of the defendant in the construction of said drain-pipe underneath said street, and to this end alleges: 1. That the defendant was negligent in placing underneath said street a 15-inch drain-pipe, which it knew or ought to have known was totally inadequate and insufficient to carry off said waters. 2. In not providing a suitable device at the mouth of said drain-pipe to prevent the water which had accumulated there from washing away the earth around said drain-pipe and undermining said street. 3. In not constructing said drain-pipe in such a manner as to have prevented said washing, and to have prevented said street from caving around said drain-pipe.”

Besides demurring generally to the petition, the defendant demurred specially to paragraph 5 as “irrelevant and impertinent to the issue;” and to paragraph 9 because “it fails to allege that the defendant had notice, actual, constructive, or legal, of any defect in its street at the time of the alleged injury to the mule,” and because it does not set forth the manner in which the mule was killed.

Theodore Titus, for plaintiff.

T. N. Hopkins, J. H. Merrill, for defendant.  