29 Ga. App. 507 | Ga. Ct. App. | 1923
(After stating the foregoing facts.)
The petition would seem to present a case of more or less complexity, but the difficulties which would appear at the outset are to a great extent removed when once we conceive the relation existing between the plaintiff and the defendant, and the duty owing by the latter to the former. Very fortunately for the writer, this relation has been clearly determined and the duty well defined by the opinion of this court by Judge Powell in the case of Huey v. Atlanta, 8 Ga. App. 597 (70 S. E. 71). We could not hope to add anything worth while to what he has said in that case. Suffice it to observe that the relation is that of an owner or occupier of land and his invitee. The duty owing by the defendant to the plaintiff is founded upon that principle which is codified in section 4420 of the Civil Code (1910) as follows: “Where the owner or occupier of land, by express or implied invitation, in
If I invite another upon my premises upon a matter of business of concern to myself, I am liable to him for such injuries as he may suffer by reason of any defects which, in the exercise of ordinary care, an inspection would have disclosed. If I do not know of the condition of my premises, I am still liable if I could have ascertained the same by a reasonable examination. It is my duty to exercise ordinary care to find out the condition,— to see what that condition is. If I do not know, how may I know unless I inspect? It is my duty to warn such one of defects of which I know and of which he does not know or could not have known in the exercise of ordinary care, but how may I warn him of defects
In the case at bar, under the allegations as made, it can not property be said as a matter of law that there was no duty to inspect and no duty to warn. The defendant owed to the plaintiff, of course, only the duty of exercising ordinary care for his safety. If this ordinary care required an inspection and warning, the defendant would be liable for a failure in these respects. These matters should be submitted to a jury, but can not be so submitted when they are stricken from the plaintiff’s petition. We think they should not have been stricken.
It was stated by the Supreme Court of the United States in the case of Bennett v. Louisville & Nashville Bailroad Co., 102. U. S. 577, wherein the plaintiff sought damages for injuries caused to her by defects in a wharf upon which she was impliedly invited, that it was “the plain duty .of the company to take such precautions, from time to time, as ordinary care and prudence would suggest to be necessary for the safety of those who had occasion to use the premises for the purposes for which they had been appropriated by the company, and for which, with its knowledge and permission, it was commonly used by. the public.” But it is claimed that an inspection of this particular instrumentality, which was a “ closed vessel,” is shown by the allegations of the complaint to have been altogether impracticable, if not impossible. If the defendant did not know that it' was in a safe condition for the purpose in hand, it was its duty, as above concluded, to find out, if it could do so in the exercise of ordinary care. If by the exercise of such diligence its' condition could not have been found out, then the defendant should not, in ignorance thereof, under the case- as pleaded, have dealt with the instrumentality in the manner alleged. If ordinary cafe requires an inspection, it requires that
In the case of Richmond & Danville R. Co. v. Elliott, 149 U. S. 266 (2), which was an action for damage to an employee of another, -lawfully upon the premises of the defendant, who was injured by reason of an explosion of a boiler alleged to have been defective, the court said: “ The injury was caused by the explosion of a boiler of an engine, and it is insisted that the testimony shows that the engine was handled properly and carefully; that the defect in the iron casting of the dome ring, which, after the explosion was found to have existed, was a defect which could not with the exercise of reasonable care have been discovered by the company; and that it took all reasonable and pyoper care to test the boiler and engine, and from such test no defect was discovered. Hence the contention is that the court should have instructed the jury to find a verdict for the defendant. Perhaps, in view of what may be developed on a new trial, it is not well to comment on the testimony in respect to these matters. Whether there was negligence in respect to the accumulation of steam is a question of fact, involving, first, the capacity of the boiler, the amount of steam which had accumulated, and the precautions which were taken to prevent its going above a certain pressure. With regard to the defect in the iron casting, which seems to have been revealed by the explosion, it may be said that it is not necessarily the duty of a purchaser of machinery, whether simple or complicated, to tear it to pieces to see if there be not some latent defect. If he purchases
We think we can with stronger reason in the case at bar, wherein the vessel is alleged to have been old, worn, and long in use by the defendant, say, as did the Supreme Court, that we can not hold “ that it is never the duty of a purchaser to make tests or examinations of his own, or that he can always and wholly rely upon the assumption that the manufacturer has fully and sufficiently tested. It may be, and doubtless often is, his duty when placing the machine in actual use to subject it to ordinary tests for determining its strength and efficiency.” Of course, these rulings apply only to cases where the invitee is upon only those parts of the premises which are necessary for ingress and egress, or whose use is necessary or incidental to the mutual purpose or business of the invitation.
It may again be noted that no questions which were raised by the demurrers were referred to by counsel for either side in their briefs except such as are dealt with in this opinion.
Judgment reversed on both bills of exceptions.