Wynne v. Southern Bell Telephone & Telegraph Co. , 159 Ga. 623 ( 1925 )

Hardeman, J.

The owner or occupant of land is liable in damages to an invitee who goes upon his premises for any lawful purpose, for an injury occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. Civil Code (1910), § 4420; Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060). Such liability may arise from defective construction. Ross v. Jackson, 123 Ga. 657 (51 S. E. 578). Whether such owner or occupant exercises ordinary care in keeping his premises, upon which an invitee goes and is injured, in a safe condition, is generally a question of fact to be determined by the jury. Questions of negligence lie peculiarly within the province of the jury, and the court should not take the place of the jury in solving them. Except where particular acts are declared to be negligence by some public law, it is .a question for determination by the jury whether they do or do not constitute negligence. Ga. R. Co. v. Neely, 56 Ga. 540; Atlanta &c. Ry. Co. v. Hudson, 123 Ga. 108 (51 S. E. 29); Stewart v. Mynatt, 135 Ga. 637 (70 S. E. 325). “Negligence is a question for the jury; the judge has no right to determine what constitutes negligence.” Woolfolk v. Macon Ry. Co., 56 Ga. 457. Under the allegations set out in the first question, to the effect that the owner constructed and maintained steps to its building, leading from the street into the building, on which the plaintiff as an invitee was injured in making her egress therefrom, that these steps were constructed with steel treads which did not entirely cover the depth of the steps but left an opening at/the back of each runner, 'that the heel of the plaintiff’s shoe as she descended these steps was caught in the opening of one of the runners of said steps, by which she lost her balance, fell, and was injured, that the construction of these steps as aforesaid constituted a dangerous and unsafe place, that the owner provided no means of access to said building-other than said steps, and that the owner was negligent in constructing and maintaining said steps with such defect, and in not providing a safe way of ingress and egress to the plaintiff, who was a patron of the owner and who was lawfully upon the premises, it may not be held as a matter of law, in passing upon a general demurrer, that the petition failed to show any negligence upon the part of the owner. We can not say under these allegations, as a matter of law, that these steps were of a kind in common use, were not defective in construction and were not the proximate cause of . the plaintiff’s injury. Nor can we .hold that the present case falls within the principle announced in Kern v. Great Atlantic &c. Tea Co., 204 N. Y. S. 402, cited by counsel for the defendant. To so hold we would have to assume that these steps were of a kind in common use, and that they were not defective in construction. In passing upon a demurrer to a petition the court is confined to the allegations of fact therein set out. So we are of the opinion that the first question propounded by the Court of Appeals should be answered in the negative.

From the allegations set out in the first and second questions and upon a consideration of a general demurrer to the petition, can it be held as a matter of law that it affirmatively appears that the plaintiff could have avoided her injury by the exercise of ordinary care, .or that her injuries were caused by her own negligence? Again it must be borne in mind that questions of contributory negligence lie peculiarly within the province of the jury. Cleveland v. Central R., 73 Ga. 793; Killian v. A. & K. Railroad Co., 79 Ga. 234 (4 S. E. 165, 11 Am. St. R. 410); Miller v. Smythe, 92 Ga. 154 (18 S. E. 46); Sherrod v. A., B. & A. Ry. Co., 27 Ga. App. 510 (108 S. E. 908). It is alleged that the plaintiff did not know of the defective manner in which the steps were constructed, that she had no occasion to make a close and minute examination of them, that she was not warned or notified of any defect or insufficiency in them, that she was free from fault, and that her injuries were directly and jproximately caused by the negligence of the defendant in certain specified particulars. Under the allegations set out in this first question, the declaration imputes negligence to the defendant; and as under the allegations contained in the second question, the /plaintiff expressly declares that she was free from fault, and as she does not concede, directly or by necessary implication, any negligence on her part, whether or not there was negligence on her part, causing or contributing to her injury, is a question of fact for the jury. So we think the second question should be answered in the negative.

Under the allegations of fact in the third question, and in the absence of any additional averment showing a defect in the steps or that they were not constructed in the usual and customary manner, it can not be held, in passing upon a general demurrer to the plaintiff's petition, that no negligence upon the part of defendant is shown by the petition. The allegation that the owner and occupant of a building constructed steps for the use of those who entered his building by his ■ invitation in the manner stated in this ■ question, that these steps constructed in this manner were defective and insufficient and constituted a dangerous and- unsafe place for those who used them, and that the owner was negligent in constructing them in such manner, whereby the plaintiff was ■injured, makes a case that should be submitted to the jury on the question as to whether or not the defendant was negligent, without further or other allegations. These allegations negative the idea that the steps were erected in the usual and customary manner, and were sufficient to carry the case to the jury.

Where the owner or occupier of premises fails to keep them in a reasonably safe condition for the use of those who go thereon by his invitation, is an invitee who is injured by a patent defect in such premises, of which she has no actual notice, to be held as a matter of law to be lacking in ordinary care in failing to observe the defect in time to avoid the injury? In other words, will the neglect of a person to observe a patent defect in the steps which she uses in entering a building at the invitation of the owner, of which defect she has no actual notice or knowledge, constitute such a lack of ordinary care as will as a matter of law debar her from recovering from the owner damages for an injury sustained by her by reason of such defect ? While this court has often decided that questions of contributory negligence are generally for the determination of the jury, and has declared with becoming judicial modesty that juries can better deal with these matters than judges, it has often held that certain obviously dangerous acts, other than those declared by the statute or municipal ordinance to be negligent, constituted such lack of ordinary care as debarred plaintiffs from recovering for injuries inflicted on them by the negligence of defendants. This will fully appear from the authorities cited below. Central Railroad Co. v. Dixon, 42 Ga. 327; Moore v. Southern Ry. Co., 136 Ga. 872 (72 S. E. 403); Lowe v. Payne, 156 Ga. 312 (118 S. E. 924). In these and in many other cases which could be cited the danger was apparent and known to the person injured. The duty imposed by law upon all persons to exercise ordinary prudence to avoid the consequence of another’s negligence does not arise until the negligence of such other is existing and is either apparent or the circumstances are such that ordinarily prudent persons would have reason to apprehend its existence. Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802). While the negligence of the defendant is alleged to have existed, we can not say that it was apparent, or that the circumstances were such that an ordinarily prudent person would have reason to apprehend its existence. Failure to exercise ordinary care by a plaintiff before the negligence complained of was apparent, or should have been reasonably apprehended, will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured. Western &c. R. Co. v. Ferguson, supra. “The established standard is whether, taking everything into account, the act is one which the common sense of mankind pronounces want of such prudence as the ordinarily careful person would use in a like situation.” We can not say under this standard and as a matter of law that the plaintiff was lacking in ordinary care in not inspecting these steps, and that she could have avoided the consequences of the defendant’s alleged negligence when the same was unknown to her. It can not be held as a matter of law that the circumstances were such that an ordinarily prudent person would have reason to apprehend its existence. So we are of the opinion that the fourth question should be answered in the .negative.

All concur.