*1 circumstances, as well as from declaration itself. Emmett State, That the deceased may have indicated a purpose to take out a warrant necessarily defendant did rebut other statements he indicating he did think he and this live, is particularly light true in the testimony physician autopsy who made an as to nature and seriousness wound, and the approximately twenty-four that he died fact making hours after State, statement. Parker v. prima facie case was A made and the evi-
dence was properly admitted. charge exception
There is to the failure the court to purpose the declaration was admitted for sole of de claring exception This the cause death. without merit. provides The Code section itself that the evidence is admissible killing. both to the cause death and as who did the
Judgment J., Jordan, J., concur. Pannell, affirmed. COMPANY, WAKEFIELD A. R. WINTER INC. Argued September Decided January 28, 1970 9, 1969
Rehearing February 26,1970. *2 appellant. for Brooks,
Wilson
George
Hart,
appellee.
for
Hiers,
McGhee &
W.
Swift, Currie,
Judge.
prop-
start with the
Presiding
“Here we
Hall,
related
negligence, including such
issues as
that issues
osition
ordinarily
suscep-
contributory negligence, are
or
wanton
against
claimant,
summary adjudication
for or
tible of
either
manner.” 6
ordinary
be resolved
trial
should
Ed.)
(2d
“Sum-
[42],
Practice
56.17
Moore’s Federal
§
usually be as
judgment will not
feasible
mary
man
applied
the standard
the reasonable
cases, where
must be
.
.
litigation.
as it
in other kinds of
conflicting testimony,
however,
dispute as to the facts,
is,
Even
there
it
say
for
whether
conduct in
usually
met
man.”
reasonable
Barron & Holtzoff-
the standard
Wright,
Procedure, 106, 109,
Federal Practice
As
1232.1.
necessitating a
recently, “Questions
this court stated
decision
given
that lack of
as to whether
state
facts shows
(within
safety
recovery
for one’s own
which will bar
which
category
placed
amounting
the assump-
are
those situations
involved)
only
comparative negligence
the risk
tion of
generally
will reduce
are
for the
jury.”
it
Stukes
Trowell,
McCurry
See also
Bailey,
It repeat Judges be well Learned Hand, to also what Frank and summary judgment: Chase have said about “We take this occasion suggest judges trial exercise should great granting care in summary judgment. motions wisely Such a judgment, time-saving used, praiseworthy is a although prompt device. But, dispatch judicial is a business virtue, it is neither the nor sole the primary purpose for which courts have been established. Denial of a disputed trial facts *3 delay. is worse than Cf. Arenas v. States, United 419, S. 322 U. 429, (64 1363). The LE district courts would SC do by well to often lost note time has been reversals of summary judgments improperly entered.” Metal Doehler Fur- niture States, Co. v. United F2d also Ginn v. 135. See Morgan, Wood v. Brunswick Pulp Co., App. 880, supra. plaintiff’s negligence
“The question of the whether he ex- posed himself a to foreseeable unreasonable risk of harm. American Institute, Restatement, Law Torts 1230, 466.” Johnson v. Thompson, involving plaintiff open
In a case a who fell an elevator into building shaft and a defendant who the shaft contractor left during open construction, Supreme Court reversed the sus- taining petition demurrer to the and held that plaintiff exercising ordinary whether the care, “was whether particulars were, alleged, guilty the contractors in of the of negligence brought injuries complained of, which about were questions determination of a under proper instruc- Co., tions from the court.” Butler v. Lewman & also Chambers v. Peacock Constr. SE See 704), affirmed 223 Ga. Supreme on this Court landmark decision A 623, Wynne in Bell Tel. &c. found v. Southern of fails 388): occupier premises or “Where the owner of those in safe condition for the use keep reasonably them a injured invitee by invitation, thereon his is an who go who patent of she has no actual by premises, a defect in such which lacking ordinary in as a matter of law to be to be held notice, injury? in to avoid the failing observe the defect time care in neglect person patent of to observe a a words, other will entering building in steps she uses a at defect in defect she has actual notice owner, invitation of the of which ordinary care as as constitute such lack of will knowledge, recovering from the owner dam- a matter of law debar her ages injury by her reason such defect? an sustained ordinary plaintiff . care before . Failure to exercise . complained apparent; or should have was preclude recovery, not reasonably apprehended, will damages proportion in jury to diminish the will authorize the person injured. fault attributable ‘The taking everything account, into whether, established standard is 'pronounces the act is one which the common sense mankind prudence ordinarily person careful want such would say can under this standard and use in a like situation.’ not We lacking as matter of law that the was inspecting steps, these that she could have avoided defendant’s when the her. can be held as a same unknown It matter law ordinarily per- such that an prudent the circumstances were *4 apprehend son would have reason to its existence.” “Looking cases, said, this contin other, similar court intermission, required for defects in a floor is uously, without Drug Brooks, App. Lane in all circumstances. Stores v. Ga. 70 (29 902; 716), App. SE2d cert. denied 878, 881, 70 Ga. 884 App. (166 64); Rogers Co., v. Roebuck & 45 Ga. SE Sears 772 (65 612); Rothberg v. Bray Barrett, App. Ga. 114 SE2d 84 v. (69 App. 477, Accord Fuller v. Bradley, Ga. 482 SE2d 85
263 (169 Steyerman Inc., Sons, App. Louis & 46 SE Ga. (199 508); Sheats, App. 730, Ga. Power v.Co. 58 Ga. 582); Corp. McConnell, App. Sheraton Whitehall v. 88 Ga. (86 (77 752); Roberts, App. v. SE2d SE2d Wicker 48); 350); Hazelwood, App. Goldsmith v. SE2d App. 912. is “a reasonable lookout” cert. ‘What ” depends all place.’ on the circumstances at the and Cho time tas v. J. Allen &
cert. den. 113 Ga. Negligence two-edged is a sword which can should cut ways. applied both equally standard should be whether it The of a plaintiff or defendant. In this sense, foresight should remembered that “Reasonable does it be require happen perfect anticipation exactly what will judgment of is necessary prevent injury. what ‘Not what actually prudent person happened, reasonably what likely happen, key would then have foreseen as is. Harper James, of reasonableness.’ 2 & Law Torts Negligence predicated ‘faulty 16.9. defective foresight hindsight rather than on which reveals a mistake.’ Pharr, Misenhamer App. 163, Daneker v. Megrue, 157).” Shock- ley Zayre Atlanta, Inc., should also remember cautionary We of Judge advice viewing
Cardozo the plaintiff’s conduct: “What the law ex- acted of him . only ordinary prevision to be looked for in a busy world.” Sibley, Lindsay Greene v. & Curr Y. 257 N. An NE excellent statement on the standard of a reasonable man was Attorney General of the United in an States address to the 1969 Annual Meeting Dinner of the American Bar Association: “The mark of the ‘reasonable man’ is to interests; balance the strike bargain perfect between possible; to adhere to a moral ideal But, adherence is compelling. general, negotiate a practical middle-of-the-road solution.” Mitchell, 53 Judicature 188. great lays stress upon defendant the fact build-
ing was under construction at the time the through fell
264 licensed testimony from is However, there open stairwell.
the customary the construction, it is “During building architect the protect in order to procedure, and recommended practice and openings to have job, on the limb of workmen life and falling into such walking or guard one protected shafts also contends The defendant etc.” shafts, stairwells, openings, it does hearsay because affidavit is architect’s that the licensed knowledge. personal on formally it was made recite that knowledge. Code Ann. personal made Affidavits must be must the affidavit (e). “This does not mean 81A-156 jurat in the statement in those a statement words. ‘A contain upon personal knowledge made affidavit is effect . but the Act, comply sufficient’ with the generally mate knowledge by other may be met requirement personal objection form of the to the no rial in least when evidence, at Corp., v. Holland in the-trial court. affidavit made Sanfax v. Motor 442); American Lawson App. SE2d 106 5 v. (6th 1954); Chambers F2d Cir. ists 726 Corp., Ins. (8th 1966).” v. Nevels States, F2d Cir. United App. (169 SE2d Homes, Inc., Detroiter Mobile Inc. 886; Chevrolet, v. App. den. Central 716), cert. 120 Ga. (2) (171 As Lawhorn, App. SE2d showing filing affidavit, there service time of any harm objection being in the trial court or v. Mut. Auto. Ins. defendant. Simmons State Farm See Harrington App. 55); Frye, 111 Ga. 116 Ga. Pulp v. Brunswick 755, 757 Wood supra. Ottinger, Malone v. binding precedent reason it was only two-judge opinion. question our of whether the evidence opinion, shows care the have avoided the use to himself the defendant’s
as well as the defendant’s as to the Hanchey open jury. Hart, resolved stairwell must be 918) opinion un- “plain, palpable 1This is decided under disputable” Berry, rule. Powell v. See motion granting defendant’s erred trial court summary judgment. Quillian and J., Deen, Bell, Pannell, C.
Judgment reversed. judgment. JJ., J., concurs Jor- Evans, Whitman, concur. dan, J., Eberhardt, J., dissent. *6 dissenting. rule is well estab-
Jordan, Presiding Judge, The ordinary care, of injured party, by the use lished that “where the have the to himself of the defen- avoided in dant’s he is not entitled to recover. His failure negligence, respect reducing damages, stop this does with the amount Co. recovery altogether.” but defeats a Butane Gas Southland the Blackwell, applying Supreme rule be the has stated that it would Court “[w]hen impossible for jury conclusion, the to arrive but one the court at opinion jury, upon not bound to take the of a a even of negligence.” Bkg. Co., & Central R. Smith quarrel have no with the principles I stated in majority holding law opinion. I dissent the on the in particular case, facts of this effect based abol- ishes the plaintiff rule a is not to recover entitled where it can said be as a matter of law that he failed to ordi- exercise nary his safety. own fall during daylight, dangers occurred whatever defects or clearly visible, plaintiff by
existed were admits that looking in movement, nothing the direction of his appears which would prevented action, have this he could have avoided falling into the open stairwell. the jury, Could under the facts by disclosed the plaintiff, any have reached other ex- conclusion cept that, whatever the of the defendant, prox- relying upon we same, LRA While not 1917A 306. Supreme very case, note in a recent Court held that party the conduct of a negligent, a “cannot be declared be as by law-making matter so law, unless it declared a and in body, absence such declaration is the question. Royal arbiter .” Garrett v. Bros. Co., beyond question plain- It is tiff’s conduct in case this has never been declared the Gen- Assembly negligent. eral to be to look his failure injuries was plaintiff’s cause
imate explanation justifiable walking, without he was think not. conduct? We his disclosed facts here difference substantial
seeWe into stepped backward cameraman who and that sup- camera, as endeavoring to focus his an while excavation (Nechtman v. B. the defendant n.o.v. for judgment porting or that 633)), Thorpe App. 626 & open hole into an home, stepped in her own plaintiff who, testified, “Well, I furnace, who of a floor removal left supporting it,” fell into I guess looking, because I wasn’t Air Bethel (Harris v. summary for the defendant judgment Conditioning App. 255 cit.) Judge state concurs am Eberhardt
I authorized this dissent. *7 Friend, v. HERITAGE DAWSON, Next AMERICAN
LIFE COMPANY. INSURANCE January February 19 7 0 Submitted 1970Decided Rehearing February