Barrow v. James

• Court: Georgia Court of Appeals
• Writing for the Court: RUSSELL; FELTON, C. J., and EBERHARDT
• Citation: Barrow v. James, 130 S.E.2d 352, 107 Ga.App. 377 (Ga. App. 1963)
• Decision Date: 21 February 1963
• Docket Number: No. 1,No. 39914,39914,1
• Parties: Callie F. BARROW v. Pierce H. JAMES

Page 352

130 S.E.2d 352

107 Ga.App. 377

Callie F. BARROW v. Pierce H. JAMES.

No. 39914.

Court of Appeals of Georgia, Division No. 1.

Feb. 21, 1963.

Walter O. Allanson East Point, for plaintiff in error.

Edwards, Bentley, Awtrey & Bartlett, Scott S. Edwards, Jr., Marietta, for defendant in error.

Syllabus Opinion by the Court.

RUSSELL, Judge.

1. The petition in this case sets out a cause of action based on one act of negligence only: the failure of a property owner to maintain his premises in a safe condition in that the top step of a flight of stairs contained a loose step which tilted when the plaintiff's weight was applied to it and threw her down the stairs. For the plaintiff to recover it was accordingly necessary for her to prove such negligence on the part of the defendant. Barrow v. James, 104 Ga.App. 345, 121 S.E.2d 700.

The testimony of a party litigant which is inconclusive and ambiguous must, even as against a directed verdict, be construed most strongly against her. Farmers Peanut Co. v. Zimmerman & Co., 52 Ga.App. 265(4), 183 S.E. 115. The ambiguity inherent in the plaintiff's testimony here is whether by the words 'top step' she is referring to the landing step or to the first step down from the landing. However, the plaintiff, although testifying that she did not know what caused her to fall, said further: 'I turned on the light and reached for something to hold to to come down stairs and there was nothing to hold to, and I just tumbled down. * * * The light switch was on the right hand side of the wall and I reached with my right hand to turn on the lights, and I reached over with my lift hand to catch the banister, something to hold to to go down the steps which were narrow and short and steep, and there wasn't anything to hold on to, so I pitched forward and tumbled over. * * * I would say there was nothing there to hold to was what caused me to lose my balance.' Her testimony accordingly shows both that she did not take any step down from the upper landing prior to falling and that it was not the condition of the landing or steps but rather her own erroneous expectation of finding a handrail which caused her to fall. By this she disproved the only negligence alleged against the defendant. Other witnesses for the plaintiff who testified as to losses step treads indentified the step as being, in one case 'the first step off the landing' and in the other 'one up near the top,' probably the third step. Such testimony is insufficient since 'the defective step must be identified with [her] fall.' McCrory Stores Corp. v. Ahern, 65 Ga.App. 334, 337, 15 S.E.2d 797. Since the plaintiff's own testimony failed to show that she reached these steps, any defect there would not have been the proximate cause of her injuries.

3. One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it...