119 Ga. App. 499 | Ga. Ct. App. | 1969
Lead Opinion
This case involves a suit for damages for personal injuries. Powell’s complaint alleges that his injuries were caused by the defendant’s negligence; that he “was injured on the north concrete ramp walkway of [defendant’s] . . . building when he slipped on a substance which appeared after he fell, to be either plywood, linoleum covered plywood, or some other similar substance which was dull in color and blended in with the concrete and, although slippery from age and exposure, did not give the patent appearance of being such.” Plaintiff also alleges that at the time he was injured he was on the defendant’s premises as an invitee and that he was “not guilty of any contributory negligence.” The defendant answered denying the material allegations of the complaint.
The plaintiff further testified that from his own experience in cleaning up trash and refuse around his barber shop and from the appearance under the plywood, it was his opinion that the plyboard had been lying there two weeks or more.
On cross-examination, the plaintiff was asked what there was to prevent him from seeing the linoleum or whatever it was on the ramp, it being daylight about nine o’clock in the morning. Plaintiff answered that: “There was nothing about it obvious to make me notice it. I didn’t—when I was told I could go out this door, the side entrance and down that ramp, when I’d walk out, I did not stop and inspect this ramp— under normal conditions.- I kept walking.”
Mr. Farr, president of Carpet Shop, Inc., testified that the garbage and trash was cleaned up and removed six days per week by the business itself. He further testified that he
Mr. Whitfield, the employee who had waited on the plaintiff, testified that the platform and ramp were clear as far as he knew; that the plywood with the linoleum on it was not, to his knowledge, on the ramp when the store was closed on Saturday; that it was leaning up against the building some distance from the ramp; that there are quite a few children in the neighborhood and they go through there all the time; that they were difficult to keep away and it was possible that they had in some manner moved it and had dropped it across the platform and left it. Whitfield also testified that, to his knowledge, he did not order or direct the plaintiff to use the ramp entrance but the plaintiff may have asked him if he could use it and he may have said “yes,” thinking the platform and ramp were clear, but he could not remember.
Whitfield further testified that when he lifted the board, there were a few leaves under it, the board was a little bit slippery because it was wet; that it had been drizzling; and that there was no mold on the ramp but there was some mold on the board.
The jury returned a verdict for the plaintiff. The defendant made motions for a judgment notwithstanding the verdict and for a new trial. An order was entered overruling both motions, as amended. This order is appealed from and enumerated as error with respect to both motions. Held:
1. The law applicable to a case such as this is summarized in Shannon v. Bigelow-Sanford &c. Co., 96 Ga. App. 458, 461 (100 SE2d 478), as follows: “Where the owner or occupier of land by express or implied invitation induces or leads others to come on his premises for any lawful purpose, he is liable in damages to such person for injuries occasionéd by his failure to exercise ordinary care in keeping the premises and approaches safe. . . The owner of land owes a duty [of ordinary care] to an invitee to protect him against injury, and he must keep the premises free from pitfalls and mantraps . . . and the owner of premises is liable for in
2. Besides the general grounds, the motion for new trial contains two special grounds. One is that plaintiff failed to show any negligence on the part of defendant and in this connection it is strenuously contended that there was absolutely no evidence showing any actual knowledge on the part of the defendant of the plyboard’s existence on the ramp, and, further, there was no evidence showing the length of time the ply-board had been on the ramp so as to charge the defendant with constructive knowledge thereof. The second special ground is that the evidence shows that the plaintiff, in the exercise of ordinary care, could have avoided injury.
Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for jury determination. Peck v. Baker, 76 Ga. App. 588, 595 (46 SE2d 751). Thus, the question presented by the two special grounds is the same as that presented by the general grounds, namely, whether there is any competent evidence to support the jury’s determination.
The plaintiff’s opinion testimony that the plyboard had been lying there for two weeks or more was properly before the jury for their consideration. The plaintiff gave the facts upon which he based this opinion. “In every instance where the subject under investigation is a proper one to be illustrated by the opinion of experts, unskilled persons may give their opinions, provided they accompany them with the facts from which the opinions are deduced.” Central Railroad v. Coggin, 73 Ga. 689, 696; Central Railroad v. Senn, 73 Ga. 705, 711. See also Code Ann. § 38-1708; Green, Geor
3. Likewise, on the question raised regarding whether plaintiff exercised ordinary care for his own safety, the jury was authorized to believe the plaintiff’s testimony that “there was nothing about it obvious to make me notice it.”
4. There was no error in overruling the defendant’s motions for judgment notwithstanding the verdict and new trial.
Judgment affirmed.
Dissenting Opinion
dissenting.
I think that the court erred in overruling appellant’s motions for a judgment n.o.v. and for a new trial.
The object on which the appellee slipped appears from the pictures in evidence to be a board about three feet long and six inches wide. That fact becomes material in the testimony of Mr. Whitfield, a witness for appellant, bearing on the question as to how long the board had been on the ramp at the time appellee slipped on it. Mr. Whitfield testified in part: “The platform and the ramp was clear as far as I knew. It had been on Saturday previously when we left there.” A photograph was exhibited to the witness and he was asked what it represented to him. He answered: “Well, it represents the spot where the object was lying, it was a piece of plywood with a piece of linoleum on it. And it wasn’t there to my knowledge at the time that the store was closed on Saturday. It was leaning up against the building some distance from that particular ramp or platform. And in that particular neighborhood there are quite a few children through there all the time. We had a
I am authorized to state that Judge Eberhardt concurs in this dissent.