58 Ga. App. 313 | Ga. Ct. App. | 1938
Mrs. T. W. Norris died from injuries received while on the property of the Macon Terminal Company. Her husband and son joined in bringing the present action for her death. The verdict was for the defendants, and the plaintiffs excepted to the overruling of their motion for new trial. The petition alleged that the deceased, while standing on the sidewalk which is on the private property of the terminal company, was killed by reason of an automobile driven by one Marks falling over an embankment at the end of a private driveway leading from Poplar Street to the south end of the terminal station, this driveway leading to that part of the depot used by the Railway Express Agency Inc.; that said driveway was maintained by both defendants for their mutual ben'efit; that said driveway had the appearance of a through street, and no one unfamiliar therewith would know it came to an abrupt end; that there were steps which led from the sidewalk to the level of the driveway, and Mrs. Norris was standing at the foot of these steps, waiting for her husband, and was in the exercise of ordinary care for her own safety; that suddenly the car driven by Marks, who was unfamiliar with the driveway, drove up the driveway and he, not knowing of the abrupt end thereof, drove over the embankment, fell, and killed Mrs. Norris; that there was no railing, guard, or other device to warn strangers of the sudden ending of the driveway or to prevent them
It appears from the evidence that on the day in question Mr. and Mrs. T. W. Norris went to the Macon terminal station to meet a friend. The premises of the Macon terminal station occupy the two city blocks between Mulberry Street on the northeast and Poplar Street on the southwest, in Macon. Fifth Street runs northeast and southwest in front of the station premises, and is
The motion for new trial contains, beside the general grounds, sixty-three special grounds. These, special grounds except three which assign error on the introduction of certain evidence, constitute either exceptions to the charge by the judge to the jury, or the refusal of requests to charge. Since this court is of the opinion that the verdict in favor of the defendants is the only legal verdict that could have been rendered under the facts of the case, it becomes unnecessary that we deal with these assignments. The allegations of the petition, as borne out by the evidence, show that the deceased was an invitee upon the premises. See Atlantic & Birmingham Ry. Co. v. Owens, 123 Ga. 393 (51 S. E. 404). The defendants, in joint control of the premises, were under the duty of exercising ordinary care for her safety. Code, § 105-401. Did the duty to exercise ordinary care for the safety of the deceased include the duty to erect signs and barriers on the driveway so that strangers would not mistake the same for a through public street? A mere omission to act, where there is a duty to act, will amount to actionable negligence as to one to whom the duty is due. However, no duty to act arises until one has notice,
The law makes no unreasonable demands. In rare instances does it require a defendant to foresee and guard against the act of another, which act is in violation of the rights of the defendant; and in those cases where a landowner has been held responsible to another person for the condition of a private way, it will be found that the defendant by his conduct impliedly invited and consented to such person’s presence thereon. Marks was a trespasser. “The rule that there is no duty towards trespassers to keep private property in a safe condition applies to private ways even though such ways open out onto public highways; and the owner or person in charge is entitled to the benefit of the rule, although he has not put up any sign or notice that the way is not public.” 45 C. J. 747. As a general rule, where a property owner constructs and maintains a private road on his premises leading from a public road, it is not incumbent upon him to place signs to warn the general public that the way is private, and one who goes thereon by mistake, thinking it to be a public road, is nevertheless a trespasser. Harris v. McClintack, 164 Ark. 145 (261 S. W. 29); Reese v. Kenyon Co., 198 Iowa, 1015 (200 N. W. 600); Blatt v. McBarron, 161 Mass. 21 (36 N. E. 468, 42 Am. St. R. 385); Beck v. Carter, 68 N. Y. 283 (23 Am. R. 175); Hardcastle v. South Yorkshire R. Co., 157 Eng. Reprint, 761; Binks v. South Yorkshire Ry. Co., 122 Eng. Reprint, 92; Printy v. Reimbold, 200 Iowa, 541 (202 N W., 122, 205 N. W. 211, 41 A. L. R. 1423); Stevens v. Nichols, 155 Mass. 472 (29 N. E. 1150, 15 L. R. A. 459). The facts of the present case fall within the above general rule. If a landowner constructs a private way over his property and for a long period of time acquiesces in its use by members of the general public, or so constructs the private way in connection with a public road as to make it impossible, under all conditions, to distinguish between them, this would amount to an implied in
Judgment affirmed.