159 Ga. 623 | Ga. | 1925
The owner or occupant of land is liable in damages to an invitee who goes upon his premises for any lawful purpose, for an injury occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. Civil Code (1910), § 4420; Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060). Such liability may arise from defective construction. Ross v. Jackson, 123 Ga. 657 (51 S. E. 578). Whether such owner or occupant exercises ordinary care in keeping his premises, upon which an invitee goes and is injured, in a safe condition, is generally a question of fact to be determined by the jury. Questions of negligence lie peculiarly within the province of the jury, and the court should not take the place of the jury in solving them. Except where particular acts are declared to be negligence by some public law, it is .a question for determination by the jury whether they do or do not constitute negligence. Ga. R. Co. v. Neely, 56 Ga. 540; Atlanta &c. Ry. Co. v. Hudson, 123 Ga. 108 (51 S. E. 29); Stewart v. Mynatt, 135 Ga. 637 (70 S. E. 325). “Negligence is a question for the jury; the judge has no right to determine what constitutes negligence.” Woolfolk v. Macon Ry. Co., 56 Ga. 457.
From the allegations set out in the first and second questions and upon a consideration of a general demurrer to the petition, can it be held as a matter of law that it affirmatively appears that the plaintiff could have avoided her injury by the exercise of ordinary care, .or that her injuries were caused by her own negligence? Again it must be borne in mind that questions of contributory negligence lie peculiarly within the province of the jury. Cleveland v. Central R., 73 Ga. 793; Killian v. A. & K. Railroad Co., 79 Ga. 234 (4 S. E. 165, 11 Am. St. R. 410); Miller v. Smythe, 92 Ga. 154 (18 S. E. 46); Sherrod v. A., B. & A. Ry. Co., 27 Ga.
Under the allegations of fact in the third question, and in the absence of any additional averment showing a defect in the steps or that they were not constructed in the usual and customary manner, it can not be held, in passing upon a general demurrer to the plaintiff's petition, that no negligence upon the part of defendant is shown by the petition. The allegation that the owner and occupant of a building constructed steps for the use of those who entered his building by his ■ invitation in the manner stated in this ■ question, that these steps constructed in this manner were defective and insufficient and constituted a dangerous and- unsafe place for those who used them, and that the owner was negligent in constructing them in such manner, whereby the plaintiff was ■injured, makes a case that should be submitted to the jury on the question as to whether or not the defendant was negligent, without further or other allegations. These allegations negative the idea that the steps were erected in the usual and customary manner, and were sufficient to carry the case to the jury.
Where the owner or occupier of premises fails to keep them in a reasonably safe condition for the use of those who go thereon by his invitation, is an invitee who is injured by a patent defect in such premises, of which she has no actual notice, to be held as a matter of law to be lacking in ordinary care in failing to observe the defect in time to avoid the injury? In other words, will the neglect of a person to observe a patent defect in the steps which