100 Ga. App. 827 | Ga. Ct. App. | 1959
Lead Opinion
The allegations of the petition show the plaintiff occupied the status of an invitee on the defendant’s premises and that the defendant failed to exercise ordinary care to keep the premises safe for her use. Southern Ry. Co. v. Howard, 9 Ga. App. 264 (70 S. E. 1124); Coffer v. Bradshaw, 46 Ga. App. 143 (6) (167 S. E. 119); Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 (116 S. E. 17). The petition did not disclose, as contended by the defendant, a failure of the plaintiff on the occasion of her injury to exercise ordinary care. The allegation that water blending in color with the color of the walkway filled the crack or depression into which the plaintiff stepped, gave a plausible reason for her inability to discern the presence of the crack or depression. Rich’s, Inc. v. Townsend, 94 Ga.App. 761 (96 S. E. 2d 332); Pilgreen v. Hanson, 94 Ga. App. 423 (94 S. E. 2d 752).
“Questions as to negligence and contributory negligence are, except in plain and indisputable cases, for the determination of the jury, and where the allegations of the petition do not, even when construed against the pleader, demand the conclusion that the plaintiff’s own negligence so preponderated as to preclude a recovery by her, this issue should be left for determination by a jury.” Shattles v. Blanchard, 87 Ga. App. 15 (2) (73 S. E. 2d 112).
The trial court did not err in overruling the defendant’s general demurrer to the petition as amended.
Judgment affirmed.
Dissenting Opinion
dissenting. “In determining the sufficiency of the petition as against general demurrer, the first matter for consideration is whether the facts alleged showed such a want of care on the plaintiff’s part to apprehend and avoid the alleged negligence of the defendant as to debar her right of recovery.” Misenhamer v. Pharr, 99 Ga. App. 163, 166 (107 S. E. 2d 875). “It is to be remembered that a plaintiff is not required to allege facts showing that he exercised due care for his own safety, or that the injury was not the result of his own negligence; but his petition is sufficient to withstand a general demurrer where it alleges that his injury was the result of defendant’s negligence, setting forth facts1 from which the jury might find that the defendant was negligent. However, if the facts alleged
The petition as amended alleged facts showing the plaintiff to be an invitee, and further alleged that she caught her shoe heel in a crack or depression of certain described dimensions in the walkway leading from the sidewalk to the entrance of the defendant’s building; that she tripped and fell as a result thereof, suffering certain described injuries; that “said defective condition was not visible to plaintiff or the persons using said walkway except from above and within two (2) and three (3) steps away from defects, and upon information and belief said broken tile and cracked and depressed defects in said walkway had existed for a long time prior to said July 3, 1957”; that “on said morning rain had blown into and upon said open walkway causing the surface to be wet and causing the mortar joints between said tiles to blend in color with the reddish color tiles, causing said cracked and depressed area to be obscured and unnoticed by persons using said walkway, as a result of which plaintiff did not see said defects, and could not have seen said defects in the exercise of ordinary care, and plaintiff did not have prior knowledge of the existence of said defects.”
Under these circumstances the court erred in overruling the defendant’s general demurrer to the petition as amended.
I am quite sure that the plaintiff intended to word her petition so as to be construed as the majority has construed it. Under the rules of the construction of pleadings on demurrer the law precludes the construction favorable to the pleader.