American Telephone & Telegraph Co. v. Murden , 141 Ga. 208 ( 1914 )

Lumpkin, J.

(After stating the foregoing facts.)

The only assignment of error urged in this court was based on the overruling of a general demurrer to the plaintiff’s petition. The argument on behalf of the plaintiffs in error was based on the ground that the plaintiff was a trespasser, and that the owner of property did not owe to a trespasser the duty of keeping it in safe condition. The decisions in Savannah, Florida & Western Ry. Co. v. Beavers, 113 Ga. 398 (39 S. E. 82, 54 L. R. A. 314), and similar cases were cited; and the cases known as the turntable cases were discussed and criticised.

It was also urged, that, there being no allegation that the defendants’ agents wrongfully placed their chest in the warehouse of the plaintiff’s father, it would be presumed that they did so rightfully; and that if the plaintiff was not a trespasser when he entered the house, he became so when he reached that part of the house where the chest was located and began to handle it.

If it is to be presumed that the defendants’ agents did not wrongfully place the chest upon the property of the plaintiff’s father, but did so rightfully, by permission or license, nevertheless it'was distinctly alleged that the house belonged to the plaintiff’s father, and that the plaintiff was not a trespasser in entering it. It is carrying the doctrine of trespassers too far, as against such an allegation, to admit by demurrer that the child was rightfully in the house and was not a trespasser there, but contend that he was 'a trespasser when he reached that part of the house where the chest was located., "We can not 'assume this on demurrer. In the present state of the case, the argument and authorities cited are not cpntrolling, whether or not they may be so on the final trial. What the facts were, as may hereafter appear from the evidence, we can not foresee. Under the petition and the general demurrer, we must consider the ease as one in which neither party was a trespasser, but both were lawfully at the place where the injury occurred. It must therefore turn upon whether, in view of the situation and the known surroundings 'as alleged, the agents of the defendants were negligent in leaving the chest in such a way as to create a dangerous situation for the plaintiff, and whether the plaintiff was negligent, in view of his age, .in "investigating” the chest or laying his hand upon it. These questions can not be solved, as matters of law, in favor of the defendants, on general demurrer.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.