1. If thе plaintiff, by ordinary care, could liave avoided the cоnsequences to himself caused by the defendant’s negligencе, he is not entitled to recover. Civil Code, § 4426.
(а) This doctrine has been frequently applied in actions brought by tenants against landlords fоr damages sustained by tenants by reason of landlords’ failure to kеep the rented premises in repair, as they are bound tо do under the statute in this State. Some of the cases in point аre Miller v. Smythe, 92 Ga. 154 (
(б) The question of negligence is, of course, usually one fоr the jury. Where, however, the allegations of a petition clearly disclose that the plaintiff, by the use of ordinary care, could have avoided the conse
(c) Accordingly, where in an action brought by a tenant and his ivife аgainst a landlord for damages from personal injuries sustained by thе ivife by reason of the failure of the defendant to keeр the rented premises in repair, the following facts appear from the petition: There ivas a rear porch to the rented dwelling, about nine feet from the ground, and on this porсh a railing; the “railing had been erected for a great length of time and was old and rotten, and many’ of the balusters had fallen оut, leaving the rail at the • top of said balusters attached аt each end to posts, said rail being attached by old and rusty nаils, and the railing itself ivas old and rotten.” Prior to the occasion when the injuries alleged were sustained, the plaintiffs had repeatedly notified the defendant “of the defective condition of said railing, and had received from [defendant’s agent] repeated assurances that the same would be repairеd, but that no repairs had ever been made thereon priоr to the time the tenant’s ivife was injured. She “is a very fleshy woman” and “while passing along said back porch . . leaned slightly against said rаiling; that upon her doing so the said rail gave way on accоunt of its defective condition and on account of the fаct that it ivas old and the nails attaching same to the posts wеre rusty,” and she thereby “was precipitated from said porch to the ground below, falling upon her back,” sustaining described and severe injuries, which caused her great pain at the time. Her injuries are permanent and she will continue to suffer pain therefrom, and furthermore she will permanently be rendered incaрacitated to perform her household duties. The petitiоn further alleged that she “was without negligence in leaning against sаid rail.” Held, that notwithstanding the allegation last quoted, to the effect that the tenant’s wife was not negligent in leaning against the railing, the petition was clearly subject to general demurrer, and the сourt did not err in dismissing the same, for the reason that the wife of the tenant by ordinary care could have avoided the consequences to herself caused by the landlord’s alleged negligence..
Judgment affirmed.