49 S.E.2d 688 | Ga. Ct. App. | 1948
It appearing from the allegations of the petition as a whole, when construed most strongly against the plaintiff, that by the exercise of ordinary care the plaintiff could have avoided the injuries for which he sued, the petition failed to show a right in the plaintiff to recover, and the court did not err in sustaining the general demurrer, and in dismissing the case.
The plaintiff alleged that the defendant was negligent in (a) failing to keep the premises safe; (b) allowing and permitting a dangerous and unguarded fixture to remain in said ice room; (c) failing to give plaintiff any warning of the dangerous condition of said unguarded fixture; (d) failing to repair the wire covering over said light fixture, and (e) in maintaining said *732 light in its dangerous condition at a height of only 5 1/2 feet from the floor. The plaintiff also alleged that at the time of said injury he was in the exercise of ordinary care, and did not see said light and wire until his scalp had been cut as described; and that the defendant's negligence was the sole proximate cause of said injuries.
The defendant demurred generally to the amended petition on these grounds: that it set forth no cause of action; that it showed that the condition was open to observation by the plaintiff, and no reason was given why he should not have seen the same; and because it gave no explanation of the action of the plaintiff in injuring himself. The court sustained the general demurrer and dismissed the case. Error is assigned on that ruling. It is not necessary to set out or consider the special demurrers to certain paragraphs of the petition.
The plaintiff's case is based on the Code, § 105-401, as follows: "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." Under the ruling of this court in Camp v. Curry-Arrington Co.,
Another principle of law applicable to this case is Code, § 105-603, *733
as follows: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." The word "avoided," as used in this section, is of broad and comprehensive meaning, and "in case of personal injuries the plaintiff as a conscious human agent is bound to exercise ordinary care to avoid the consequences of the defendant's negligence, by remaining away, going away, or getting out of the way of a probable or known danger." Mansfield v. Richardson,
Tested by the foregoing rules of law, the petition of the plaintiff failed to state a case, and it was properly dismissed on demurrer. The plaintiff went into the ice room which was lighted by an electric light suspended from the ceiling. The approximate height of this light from the floor, alleged to be about 5 1/2 feet, was obvious to the plaintiff, and no reason appears why the plaintiff could not have seen the broken wires of the cage or basket over the light, although he alleges that the broken cage *734
was not discernible to him in coming into the room from the natural light of day outside. He does not allege that his eyesight was defective, nor that the light itself was poor or insufficient to properly light the room. The allegation that he dragged the block of ice into the room in a stooped or crouched position does not excuse his conduct in straightening up under the light, and coming in contact with the broken and jagged wires, without having seen the relative position of the light and the wire cage or basket protecting it. The petition does not charge the defendant with wilful or wanton negligence, and the plaintiff can not recover, despite the negligence charged to the defendant, if by the exercise of ordinary care on his part the consequences of the defendant's negligence could have been avoided. Central of Georgia Ry. Co. v. Bridwell,
The plaintiff, in a very full brief, has cited the following cases: Fulton Ice Coal Co. v. Pece, supra, Camp v.Curry-Arrington Co., supra, Indian Springs Swimming PoolCorp. v. Maddox,
Judgment affirmed. Sutton, C. J., and Felton, J.,concur.