This is an appeal by the defendant, Church’s Fried Chicken, Inc. (Church’s), from an adverse jury verdict. Sammie T. Lewis, plaintiff, brought this action against Church’s alleging that he entered Church’s at approximately 1:30 a.m. on the morning of February 6, 1977 to make a purchase. There was a long line and he and his girlfriend were on the end. They were asked several times by a waitress to go outside to the ordering window where they would be served. They declined at first because "it was cold outside,” but when the waitress persisted they went to the outside ordering window which was on the frontside of Church’s. They were standing on a concrete area 66 inches in depth from the adjacent parking area, and it was raised 4 inches in height above the asphalt parking area. As they were waiting for delivery of their order, a car started its engine and suddenly "zoomed and lurched forward” into them. It pinned the plaintiff to the wall of Church’s breaking both of his legs and "knocked in” the front of the building.
Plaintiff alleged that defendant failed to exercise ordinary care in keeping its premises and approaches safe for its customers and in failing to provide a buffer zone between the parked cars and customers waiting to be served at the outside serving window. There was no "stop block” for automobiles before they encountered the curb. The defendant appeals from the jury verdict for the plaintiff. Held:
1. Defendant has combined his. first and second enumerations of error alleging the trial court erred in overruling his motion for judgment notwithstanding verdict and motion for a new trial. We also will treat both issues in this Division. The principal issues were (1) whether Church’s was negligent, and (2) if negligent, was *155 such negligence "a” proximate cause of the incident.
Church’s had installed 6 inch high "precast concrete” "stop blocks” on the side of their restaurant but did not install stop blocks on the front side of the restaurant where patrons were required to stand when using the outside ordering window. The plaintiff had been directed to use the outside ordering window by an employee of the defendant. Mr. Kelly, an architect, engineer, and builder, testified that there was a standard "for curbing along walkways in front of buildings where cars park . . .the standard is not less than six inches in height . . .” The curbing height here was 4 inches. He was not aware of any standard requiring use of "stop blocks” in such a situation, but as "a professional designer and architect” he "would recommend stops to prevent cars from running into the building or hurting people.”
(A) "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Code Ann. § 105-401 (Code § 105-401). The proprietor is bound to use reasonable care to protect invitees from injury "not only from defects in the premises but also from other dangers arising from the use of the premises by himself or his licensees.’’Johnson
v. John Deere Plow Co.,
"The exercise of ordinary care to keep the premises safe for invitees includes a duty to anticipate the negligence of others which is usual and likely to happen, but not acts of negligence which are remote and unlikely to
occur.” Eckerd-Walton, Inc. v. Adams,
"In determining the question of whether a business proprietor exercised ordinary care to protect a business invitee from dangerous conduct of others on the premises, the standard is whether a reasonably prudent person at the time and in the circumstances would have foreseen danger and what he reasonably would have done to prevent injury; negligence is defective foresight judged by this standard rather than by hindsight of what actually happened and the effectiveness of the action taken [to prevent the incident].”
Shockley v. Zayre of Atlanta,
In
Chatmon v. Church’s Fried Chicken,
In Munford, Inc. v. Grier,
"' "It is well-settled law that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are to be decided by a jury, and a court should not decide them . . . except in plain and indisputable cases.” [Cits.]’ ”
James v. Sears, Roebuck & Co.,
Under Chatmon and Munford, supra, we find that *157 the issues of negligence in the instant case, i.e. whether the defendant reasonably should have anticipated the event which occurred, and taken reasonable steps to prevent its occurrence — was not "plain and indisputable” and should have been submitted to the jury.
(B) With reference to the issue of proximate cause, there can be no recovery by a plaintiff for the negligence of a defendant "which was not the proximate cause of the injury. If the cause was remote and furnished only the condition or occasion of the injury, it was not the proximate cause thereof.”
Whitaker v. Jones &c. Co.,
To relieve the defendant from liability where both the defendant and a third party were negligent, it must appear that the negligence of the third party intervened and superseded the defendant’s negligence.
Perry v. Lyons,
" 'While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or
*158
natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.’
Blakely v. Johnson,
As noted earlier " ' "[i]t is well-settled law [in Georgia] that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are to be decided by a jury, and a court should not decide them ... except in plain and indisputable cases.” [Cits.]’ ”
James v. Sears, Roebuck & Co.,
(C) The defendant’s motion for judgment notwithstanding the verdict was based upon the same grounds as its motion for directed verdict — "the evidence would not support a verdict for the plaintiff and that the evidence demanded a verdict in favor of the defendant.” This is tantamount to alleging the general grounds as
*159
error. See
Coaxum v. State,
The issues were properly submitted to the jury and were resolved against the defendant. The jury is the final arbiter of the facts, and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict. Id.;
Smith v. Hornbuckle,
2. We will consider the third, fifth and sixth enumerated errors in this division. The defendant offered in evidence 16 photographs depicting the height of concrete slabs and walkways in front of other business establishments, including — inter alia, a building without a raised concrete slab before a door, a 6 inch high walkway outside the University Hospital, several 2 to 4 inch high slabs, a 3 inch high walkway outside a Baskin-Robbins Ice Cream store, the curbing beside the street in front of a Dairy Queen, a 2 inch high concrete slab in front of a Majik Market, a 4 inch high concrete walkway in front of a Krystal Hamburger place, and a 2 inch high concrete walkway outside a "Sizzlin Steakhouse.” All pictures included a 6 inch ruler propped *160 up by the curbing to indicate the height of the curb. The court refused to admit the ruler and the photographs. The court also refused a requested charge which stated, in essence, "before a recovery would be authorized for the plaintiff... it must be shown that the premises were less safe than those provided by ordinarily prudent owners and occupiers of land for their invitees . . .”
The court did permit plaintiffs expert, Mr. Kelly, to examine the photographs tendered — with the ruler indicated by the testimony, and thus placed in evidence through the testimony of plaintiffs witness, the information portrayed by the photographs and the ruler. To place this evidence in perspective, we should recount the description of Church’s building. The restaurant had an outside ordering window on the front where patrons were required to stand, and the 4 inch high raised walkway was on the defendant’s property and apparently was so constructed and maintained by them. None of the photographs tendered represented a place where patrons were required to wait in front where the walkway was built and maintained by the business. This distinction was clearly pointed out in
Chatmon v. Church’s Fried Chicken,
Evidence to be admissible must be relevant. Code Ann. § 38-201 (Code § 38-201). Questions of relevancy are addressed to the sound discretion of the trial judge.
Alexander v. State,
The instruction requested tied all of this evidence together by instructing the jury that before the plaintiff *161 could recover "it must be shown that the premises were less safe than those provided by ordinarily prudent owners.” The jury was correctly instructed on negligence, the standard of "care and diligence which every prudent man takes of his own property of a similar nature or that care and diligence which every prudent man would exercise in similar circumstances and like surroundings,” and a failure "to exercise that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances to prevent injury to another...”
It is not error to fail to charge in the exact language requested where the principles of law embodied in the request were included in the charge given.
McCurry v. McCurry,
3. We find no evidentiary basis for a requested charge on comparative negligence. Even though plaintiff had been to defendant’s establishment on at least one prior occasion, and was aware of the conditions he now alleges to be negligence on the part of the defendant, we are unaware of any negligence on his part. He attempted to avoid going outside the restaurant, but was instructed more than once by defendant’s employee to go to the spot where he was ultimately injured. This enumeration is meritless.
4. The last alleged error is the refusal of the court to admit in evidence the complaint of this plaintiff against the driver of the automobile which injured him, in which he alleged that the driver’s negligence was "the proximate cause” of the injuries he received. Defendant cites
Kelly v. Chrysler Corp.,
We find Kelly to be inapposite on the facts and law. In Kelly the plaintiff sued two different defendants for the same damage alleging that each defendant’s negligence caused the damage. We cited in Kelly that the claims there "did not deal with a tort involving joint tortfeasors,” as in the present case, but was for "breach of a bailment contract and . . . for breach of warranty.” Id at 450. For that reason we held it was an "admission” when plaintiff first pleaded that the bailee’s negligence caused the damage and then pled in the latter suit that the damage was caused by a defective engine from Chrysler. In the instant case, the defendant called the driver of the automobile as a witness and all members of the jury were fully aware of the acts of the driver and Church’s. No attempt was made to mislead the jury into believing that the "sole” cause of plaintiff’s injuries were the result of the defendant’s negligence. The court charged the jury "[w]here the sole proximate cause of the injury to the Plaintiff is the negligence of someone other than the Defendant, there can be no recovery against the Defendant, although the Defendant may have been guilty of some negligence.”
As stated above, if the negligence of two persons combine to produce the injury complained of, either may be sued for the entire amount of damages to the plaintiff and there is no accounting of comparative negligence between the two negligent persons causing the injury and either of them can be held for the entire damage even though one was more negligent than the other.
Fields v. Johnson,
Judgment affirmed.