Johnson v. Collins

| Ga. | Mar 30, 1896

Lead Opinion

Atkinson, Justice.

The official report states the facts.

1. It will be observed that the plaintiff alleges in her declaration, that although the steps were out of repair and she had known this for some time, she had no reason to suppose their use would be dangerous, but did suppose that the props which she and her son had used would be sufficient. The negligence of the landlord was alleged, and the tenant rests her case upon the theory that though she was advised that the premises were in need of repair, and that although she knew they were out of repair, she did not know their use would be dangerous. The question as to whether or not she was in the exercise of ordinary care in the use of the steps, was a question of fact to be passed upon by a jury; and to convict her of negligence, it was necessary to appear, not only that the steps, which were the cause of her injury, were defective, but that she likewise [knew of the danger. If they were out of repair, but not so obviously so as that a person of ordinary prudence must have known they were dangerous, then she was entitled to go to the jury upon the question as to whether there was .an apparent danger in their use. As long as she did not know they were dangerous, or had no reasonáble ground to-suspect such to be the fact, her use of them could not be legally considered negligent. She alleges that she. did not. know they were dangerous. There is no allegation from which the inference can be drawn as matter of law that they were so obviously dangerous as to have put a prudent person upon notice of any danger which might result from their use; and the demurrer to the declaration admitting the facts, it should have been overruled, and the questions of faGt made in the case submitted to the jury.

Judgment reversed.

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Dissenting Opinion

Lumpkin, Justice,

dissenting.

Although the plaintiff’s declaration does allege, with reference to the steps .which she avers the defendant, her' landlord, negligently failed and refused repair, that “she' had no reason to believe them dangerous, supposing that the props which she and her son had used to support them would be sufficient,” yet as it contains other allegations' showing that these steps had been “badly decayed and broken” and “were very much decayed and sadly in need of repair” for at least six months before she received the injuries complained of, that the repairs made by the defendant’s agent and by the plaintiff’s son did not remedy the defects, that the plaintiff was all the while, by reason of daily use and observation, perfectly familiar with the condition of the steps, and that in the exercise of ordinary care-she ought to have known that the use of them, even after the making of the above mentioned repairs, was dangerous,, she was not entitled to a recovery. Taken as a whole, the declaration shows that, in continuing to use the steps-, she' voluntarily assumed a risk which she need not have taken, and that in so doing she was not observing ordinary care- and diligence to prevent the injuries of which she complains.