60 Ga. App. 331 | Ga. Ct. App. | 1939
Guy Webb, an eleven-year-old boy, by his next friend and father (E. L. Webb),'sued William T. Healey and Oliver M. Healey for damages for alleged personal injuries. The amended petition alleged that the defendants" were residents of Fulton County, and owned and operated a farm, consisting of two settlements, in Cobb County; that" E. L. Webb was employed by the defendants to stay On the farm" and run it for them, and that the contract of employment took into consideration the services to be rendered by Guy Webb in helping to work the farm; that E. L. Webb and his family, including Guy Webb, occupied the dwelling house on one settlement, and that E. L. Webb’s married son, with his family, occupied the dwelling house oh the other settlement; that defendants reserved to themselves the right of possession of the premises, and the plaintiff was an invitee thereon because he was a member of his father’s family and resided and worked on the farm under the terms of the contract between his father and the defendants; that on the premises was an old open barn which was used as a storage place for guano, hay, and farm tools; that the barn was about 35 yards from the dwelling house occupied by the married brother of the plaintiff; that for two or three years before October 10, 1937, the defendants had intermittently stored in the barn two mechanical devices known as clay-pigeon traps, which were used by them for target practice with shotguns, the traps being machines in the nature of a catapult, having thereon a long arm or lever, in the end of which can be fastened a small disk, commonly known as a clay pigeon, said arm or lever being held set by a trigger to which a rope is attached and, when the trap is set or cocked, a powerful spring is attached to the lever in such a manner that when the trigger is pulled the spring is released and the lever is thrown violently in a manner that will cause the clay
The alleged cause of action is evidently based on the doctrine of the “turn-table eases.” The plaintiff’s father, as shown by the amended petition, was a tenant of the defendants, and the duty owed by the defendants to the plaintiff and other invitees upon the premises was to exercise ordinary care to keep the premises in a reasonably safe condition. The petition, properly construed (most
In our opinion, the decision just quoted is controlling in principle in the instant case. In Horton v. Sanchez, 57 Ga. App. 612 (195 S. E. 873), where this court affirmed the judgment dismissing the petition on a general demurrer, the court, on page 620, said: "It is earnestly contended by the plaintiff in error that the question of proximate cause should have been referred to a jury. Generally that question, like the question of negligence, is one for a jury; but where the allegations of the petition, as here, clearly show that the proximate cause of the injury to the plaintiff was the negligent act of a third person, rather than the act of the defendant, whether negligent or not, the question must be decided by the court as a matter of law. • A proper construction of the petition in the present case requires a holding that the proximate cause of the plaintiff’s injury was the negligent, intervening act of the third party, Califf, and not that of the defendant, Dr. Sanchez.” That ruling is applicable to the instant case, the petition here clearly showing that the proximate' cause of the plaintiff’s injuries was the independent and 'intervening act of third parties, the plaintiff’s playmates. We have carefully considered all of the cases cited by the defendant in error, but in our opinion they are distinguished by their particular facts from this ease. For instance, there is an