31 Ga. App. 441 | Ga. Ct. App. | 1923
Lead Opinion
(After stating the foregoing facts.)
We think that the court was in error in dismissing the petition. Under the averments made, the plaintiff had a right to be upon the premises at the place where the injury occurred. She alleges not only that she was a member of the family of a tenant, but went to the apartment of another tenant as an invitee and guest, upon matters of interest and concern to them both. “A landlord is liable to one lawfully present on the rented premises, by invitation of the tenant, for injuries arising from defective construction, or from failure to keep the premises in repair, where the defect is known to the landlord or in the exercise of reasonable diligence could have been known, and the injured person was himself in the exercise of due care.” Ross v. Jackson, 123 Ga. 657 (51 S. E. 578). See Civil Code (1910), §§ 3694, 3699; Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (118 S. E. 694). Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. Civil Code (1910), §4420.
It is alleged that the defendant retained the possession and control of the hall where the plaintiff was injured. Where the landlord retains even a qualified possession and general supervision of his building he may be held liable to his tenants, their guests or invitees, for injuries arising from a failure to maintain the building in proper repair or a reasonably safe condition, either if he knew of the defects or if in the exercise of ordinary care he should have known of them. Monahan v. National Realty Co., 4 Ga. App. 680 (1) (62 S. E. 127).
Ordinarily, before a landlord can be held liable for damages for a failure to keep the premises in repair or in a safe condition,
The question next presented is, was the defendant negligent? Perhaps it is true that waxing or otherwise treating the floors in the halls of a building of the nature and uses here described may be proper, and would not amount to negligence when done in the usual and ordinary manner, but the plaintiff alleges that the proper way to use “liquid wax” is to apply it and then “wipe it up or dry it off,” and further that “unreasonably large quantities” were applied by the defendant “without wiping it off.” We cannot say as a matter of law that the petition does not allege a negligent condition of the floor. In the nature of the averments the question is one for a jury.
Does the petition disclose that the plaintiff could have avoided the consequences of the defendant’s negligence by the exercise of ordinary care? If so, the plaintiff cannot recover notwithstanding the defendant’s alleged negligence. Civil Code (1910), § 4426. The petition avers that the hall was not lighted so that the condition of the floor could be easily and readily observed; that it was “so dark that the condition of the floor could not be observed so as to tell whether or not any solution such as liquid wax was upon said floor,” which was “only rendered slick and treacherous and dangerous and unfit for walking on by the act of the defendant in placing said liquid wax upon same while the plaintiff was in said Apartment No. 24, and the plaintiff had the right to assume that said passageway was in a safe and proper condition and in the same condition as when the plaintiff entered said apartment,” only forty minutes before; that she did not know of the dangerous condition and was not warned. The petitioner further alleges that “immediately upon entering the hallway,” as she departed from her visit to Mrs. Asbill, her feet “shot out from under her
While it is true that where facts are considered on demurrer and every rational interpretation thereof requires the conclusion, as a matter of law, that there was a want of ordinary car.e on the part of the plaintiff, the demurrer should be sustained (Moore v. Seaboard Air-Line Railway C o., 30 Ga. App. 466 (6), 118 S. E. 471); yet questions as to diligence and negligence are peculiarly for the jury, and the court will decline to solve them on demurrer except in plain and indisputable cases. Columbus Railroad Co. v. Moore, 29 Ga. App. 79 (1) (113 S. E. 820). We do not think that the facts set forth in the complaint present such a case. This conclusion is not in conflict with'any of the decisions of this court in a number of recent cases to be presently mentioned. We have caused practically the entire complaint to be set forth in detail, in order that the distinction between this case and those may become readily apparent. The cases of Flournoy v. American Hat Mfg. Co., 21 Ga. App. 599 (94 S. E. 835); Day v. Graybill, 24 Ga. App. 524 (101 S. E. 759); Ogain v. Imperial Cafe, 25 Ga. App. 415, and Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589, involved the rights and liabilities incident to the relation of master and servant, and each of them apparently turned upon the theory that the plaintiff employee either knew or had equal opportunities with his master of knowing of the defects complained of. While the plaintiffs in the Ogain and Biederman cases each attempted to negative this proposition, they did so merely by conclusions which the pleaded facts respectively not only failed to support, but disputed. A nonsuit was affirmed in Flanders v. Atlanta Terminal Co., 21 Ga. App. 812 (95 S. E. 307), because the plaintiff did not prove the allegation .of her complaint that the steps were worn and slick. The sufficiency of the petition was not decided. It might or might not have been subject to demurrer. In Jones v. Asa G. Candler Inc., 22 Ga. App. 717 (97 S. E. 112), a nonsuit was granted because it appeared from the evidence that
The petition set forth a cause of action, and the court erred in sustaining the demurrer. See Jones v. Tift, 63 Ga. 488; Archer v. Blalock, 97 Ga. 719 (25 S. E. 391); Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060).
Judgment reversed.
Concurrence Opinion
concurring specially. The plaintiff invitee, in walking upon the waxed floors maintained by the defendant, assumed all the risk incident and usual to the ordinary condition
