Campbell v. Eubanks, 39835

• Decision Date: 14 March 1963
• Docket Number: No. 39835,No. 2,39835,2
• Citation: 130 S.E.2d 832,107 Ga.App. 527
• Parties: Irma CAMPBELL v. Ruby M. EUBANKS
• Court: Georgia Court of Appeals

Page 832

130 S.E.2d 832

107 Ga.App. 527

Irma CAMPBELL v. Ruby M. EUBANKS.

No. 39835.

Court of Appeals of Georgia, Division No. 2.

March 14, 1963.

Rehearing Denied March 28, 1963.

Syllabus by the Court

It is erroneous for the court to charge the jury that certain acts or omissions constitute negligence when such acts or omissions are not negligent per se.

Ruby M. Eubanks filed suit in the Superior Court of Richmond County against Mrs. Irma Campbell to recover damages for personal injuries sustained by the plaintiff when she slipped and fell while descending the front porch steps of the defendant's home. The petition as amended alleged the following material facts: 'That plaintiff and defendant are sisters, and their mother, Mrs. Annie Jones, resided with the defendant at the aforesaid premises.

'That Mrs. Mary Annie Jones, on July 4, 1961 was approximately eighty-six (86) years of age, and for some time prior thereto had been a complete invalid dependent upon the defendant, Mrs. Irma Campbell, for feeding, clothing and all other elements of care and nursing; and the defendant, Mrs. Irma Campbell, had assumed responsibility for said care and nursing, relieving the other children of Mrs. Mary Annie Jones, including the plaintiff, from any obligations on their part in respect to the care and nursing of Mrs. Mary Annie Jones, for a consideration of one hundred twenty and no/100ths ($120.00) dollars per month which was paid by six children of Mrs. Jones in equal monthly installments of twenty and no/100ths ($20.00) dollars each, said payments being current at the time of plaintiff's injuries on July 4, 1961.

'That the defendant on numerous occasions prior to July 3, 1961, by letter and oral request, invited plaintiff to defendant's household at 1925 Fenwick Street, Augusta, Georgia, for the purpose of assisting with the care and nursing of Mrs. Mary Annie Jones who departed this life in August, 1961.

'That plaintiff, in response to the aforesaid invitations and requests, took vacation from her employment in Atlanta and on July 3, 1961 arrived at the premises owned and occupied by the defendant.

'That plaintiff, in response to the aforesaid invitations of defendant, was to remain upon the premises until approximately July 10, 1961 when plaintiff would return to her home in Atlanta, Georgia, during which time plaintiff was to assist and relieve the defendant in her nursing and care of Mrs. Mary Annie Jones, both day and night.

'That plaintiff, from the time of her arrival on July 3, 1961 until the time of the injury complained of herein, on July 4, 1961, did assist and relieve the defendant in the feeding, clothing and all other elements of nursing of Mrs. Mary Annie Jones.

'That plaintiff was not offered, and did not expect to receive, any payment or other benefit for her services, but performed same entirely for the benefit of defendant and Mrs. Mary Annie Jones.

'That there was common interest and mutual advantage on the part of plaintiff and defendant arising from the plaintiff being on the premises of defendant.

'That by reason of the aforesaid facts plaintiff was an invitee upon the premises of defendant at all times herein mentioned.

'That on July 4, 1961 at approximately 8:00 P.M., plaintiff was in the backyard of the premises owned and occupied by the defendant making ice cream for members of the household including the defendant and Mrs. Mary Annie Jones. During this time the defendant went to the front of the house and put into operation a water sprinkler and placed it in such position that water was thrown upon the brick and cement steps leading from the front porch of the premises to the sidewalk. The water mixed with dirt, dust and pollen upon the steps in such fashion that the surface of the steps was rendered highly slippery and extremely hazardous to persons using same.

'That the defendant did not turn on the porch light or otherwise act to illuminate the area and give persons using the steps visibility of the hazardous conditions which existed by reason of the steps being wet and very slippery.

'That plaintiff had no knowledge of said hazardous conditions or risk involved. Said conditions and the danger involved were not obvious or apparent to plaintiff, and there was nothing to put the plaintiff on notice of said conditions or notice of the risk and danger involved.

'That at approximately 8:30 P.M., July 4, 1961, plaintiff walked to the steps intending to go to her car which was parked in front of the house and remove an article of clothing. At said time it was full night, but plaintiff had sufficient visibility to see the steps but insufficient visibility to see the wet and hazardous conditions which existed as aforesaid.'

'That plaintiff attempted to use the steps but her feet slipped on the wet surface throwing her violently to the ground and resulting in the severe injuries hereinafter stated.'

The petition set forth the injuries and...