Corbett v. Atlantic Coast Line Railroad

24 Ga. App. 790 | Ga. Ct. App. | 1920

Bloodworth, J..

(After stating the foregoing facts.) This case is controlled by the decision in the case of American Telephone and Telegraph Co. v. Murden, 141 Ga. 208 (80 S. E. 788). In that case a large chest, with a heavy lid which “had a small chain attached to it so as to prevent it from going much beyond a perpendicular position when opened,” was placed by defendants in a cottonseed house belonging to the father of a minor. “The place was a public one and much frequented by children.” The petition alleged that the lid when left up “could, by a very slight pressure upon the chain, be drawn over so as to fall;” that “on the date mentioned the employees of the defendants left the lid of the chest raised, and went away, leaving the door of the house open as an invitation to children to enter, they all knowing that the place was frequented by children and that the lid thus left was a dangerous trap likely to attract the notice and invite the investigation of children. The plaintiff, who was a child between two and three years old, seeing the door open and the lid up, was attracted thereby, and, in seeking to investigate it, according to the natural instincts of a child, pushed upon the chain and threw the lid down. His right thumb was caught and mangled so that it had to be cut off at the joint. He was incapable of exercising care for his own safety, and the occurrence was due entirely to the negligence of the employees of the defendants in leaving the chest lid open and exposed as stated.” A demurrer to the petition was overruled, and the defendant excepted. The Supreme Court said: “Under the petition and the general demurrer, we must consider the case as one in which neither party was a trespasser, but both were lawfully at the place where the injury occurred. It must therefore turn upon whether, in view of the situation and the known surroundings as alleged, the agents of the defendants were negligent in leaving the chest in such a way as to create a dangerous situation for the plaintiff, and whether the plaintiff was negligent, in view of his age, in ‘investigating’ the chest or laying his hand upon it. These questions cannot be solved as matters of law, in favor of the defendants, on general demurrer.” Under the petition in the instant case, we can not treat the minor as a trespasser, and the case must turn upon whether or not the defendant was negligent as alleged in the petition. As questions of negligence are peculiarly for determination by the jury, the judge erred in dismissing the petition on general demurrer.

Judgment reversed.

Broyles, C. J., and Lulce, J., concur.