8 S.E.2d 410 | Ga. Ct. App. | 1940
The court did not err in sustaining the general demurrer to the petition, and in dismissing the action.
The judge sustained a general demurrer to the petition, and the plaintiffs excepted.
Construing the allegations most strongly against the plaintiffs, the effect of the petition is to allege that the deceased was not using the premises where he was killed by virtue of his right as a member of the public to use the same, but that he had the right by reason of the fact that travelers and members of the public used the premises with the knowledge and without the disapproval of the defendants. Under the facts alleged, the premises, in the absence of an allegation to the contrary, would presumptively be closed to the public, a fact which would seem to be indicated by the very nature of the work being done and the improvements being made. In this view, under the law the deceased was no more than a licensee. Code, § 105-402. The action is for simple negligence. Assuming for the sake of argument that the defendants owed the deceased the duty to anticipate his presence, and that they were guilty of ordinary negligence, it seems to us that by the exercise of ordinary care the deceased could have avoided the consequences of any negligence of which the defendants might have been guilty and for which they could possibly have been held liable. He voluntarily placed himself in a place of obvious danger, and he can not be excused from the exercise of ordinary care by which he could have discovered the hole into which he fell, because the danger in which he placed himself prevented him from doing so, when it is obvious that in the absence of the danger to which his attention was directed *145
he could have seen the hole and avoided the injury. Briscoe v.Southern Ry. Co.,
Judgment affirmed. Sutton, J., concurs. Stephens, P. J.,dissents.