24 Ga. App. 94 | Ga. Ct. App. | 1919
1. Ordinarily, questions of negligence are such as lie peculiarly within the province of the jury to determine; but where by the allegations of the petition itself it clearly appears that the plaintiff, by the exercise of ordinary care, could have readily avoided the consequences flowing from the defendant’s negligence, the petition is subject to demurrer, since “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.” Civil Code (1910), § 4426; Ball v. Walsh, 137 Ga. 350 (73 S. E. 585).
2. It is ordinarily the duty of a landlord to turn over the rented property to the tenant in a condition reasonably safe and suited for the purpose intended, and free of such latent defects as the exercise of ordinary diligence on the part of the landlord might have disclosed; but where, as in this case, under the allegations of the plaintiff’s petition, the defect must necessarily have been plainly apparent, and the tenant not only had opportunity equal to that of the landlord of discovering and understanding the defects, but had actual knowledge thereof with full opportunity of notifying the landlord thereof prior to the time of the damage or injury, then before the landlord would be liable in damages to the tenant for resulting injuries it must appear that notice of such defects had first been given him. Henley v. Brockman,
Judgment reversed.