Central of Georgia Ry. Co. v. Ledbetter

• Decision Date: 24 February 1933
• Docket Number: 22472.
• Citation: 168 S.E. 81,46 Ga.App. 500
• Parties: CENTRAL OF GEORGIA RY. CO. v. LEDBETTER.
• Court: Georgia Court of Appeals

168 S.E. 81

46 Ga.App. 500

CENTRAL OF GEORGIA RY. CO. v. LEDBETTER.

No. 22472.

Court of Appeals of Georgia, First Division

February 24, 1933

Syllabus by the Court.

Owner of premises must exercise ordinary care to prevent injury to licensee after his presence is known or reasonably should be anticipated.

Duty of owner of premises to trespassers and licensees is generally to keep premises free from pitfalls.

Petition alleging that plaintiff through mistake in identity of defendant's ship entered on plank walkway leading thereto, and was precipitated downward through unguarded and unlighted opening, held to state cause of action for injuries.

The petition alleged that petitioner believed the ship in question to be the one on which his brother worked as member of crew, and that he entered on the plank walkway leading to ship and that at point of junction with another walkway petitioner was without warning precipitated downward through unguarded and unlighted opening. Petitioner alleged that defendant was negligent in creating or maintaining opening pitfall, or mantrap and in failing to place lights thereon or provide warning.

In this case, in which it was sought to recover damages for injuries received by the plaintiff from falling into an opening in a walkway on the defendant's premises, the petition set out a cause of action, and the trial judge properly overruled the defendant's oral motion to dismiss it.

Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.

Action by H. P. Ledbetter against the Central of Georgia Railway Company. To review the judgment overruling his motion to dismiss the petition, defendant brings error.

Affirmed.

BROYLES C.J., dissenting.

H Wiley Johnson and Julian F. Corish, both of Savannah, for plaintiff in error.

Ryan & Glass and Ernest J. Haar, all of Savannah, for defendant in error.

MacINTYRE Judge.

H. P. Ledbetter brought an action against Central of Georgia Railway Company to recover damages for alleged personal injuries. The only question presented by the record here for determination is whether or not the trial judge erred in overruling the defendant's oral motion to dismiss the petition upon the ground that no cause of action was set out.

The parts of the petition material to an understanding of the question raised are substantially as follows:

"3. On the evening of October 14, 1930, at approximately 6:45 o'clock p. m., and after the fall of darkness, petitioner, together with Mr. Joseph Walker, was endeavoring to locate the S/S Tulsa for the purpose of visiting and talking to his brother, who was a member of the crew of said steamship, and which said ship was moored at one of the several berths occupied and controlled by said defendant at a point immediately west of the City of Savannah on the southern bank of the Savannah river, the particular berth at which said ship was moored being commonly known and designated, petitioner is advised and believes, as berth No. 19.

"4. Petitioner shows that in pursuit of his intention as aforesaid, he went to the terminals, wharves, or berths occupied and controlled by defendant *** as aforesaid, and observed a ship moored at a berth, which ship, by reason of the darkness, he mistook for the Tulsa, but which, he learned, subsequently to the occurrence hereinafter recited, was not the Tulsa, but a ship the name of which is unknown to him, and which was moored in berth No. 22.

"5. Petitioner, believing the ship he saw *** to be the Tulsa and his objective point, endeavored to approach the said ship, and, pursuant thereto, he entered upon a plank walkway occupied and controlled by the defendant for the passage of persons and vehicles to and from vessels moored at their several berths as aforesaid, said walkway being located at the southern extremity of the artificial slips occupied and controlled by the defendant, and running at right angles to and joining another walkway occupied and controlled by defendant, the same paralleling the western side of said artificial slip, both of which walkways are in excess of twelve feet in width, and both of which are a usual means of ingress and egress to and from vessels moored at the said several berths. ***

"6. Petitioner shows that, being on the east and west walkway aforesaid, he observed the ship which he took to be the Tulsa and saw a lighted area immediately adjacent to said ship, and upon looking down the north and south walkway towards the said ship, he saw what appeared to be a clear and unobstructed roadway leading to said ship, and petitioner, in company with Mr. Walker, proceeded to enter the said north and south walkway, petitioner walking a step or two in advance of Mr. Walker. Having arrived at this point of junction between the north and south walkway, or roadway, and the east and west walkway, or roadway, petitioner was, without warning, precipitated downward through an unguarded, unlighted, unseen, and undisclosed opening in the said north and south walkway, falling a distance of some six or eight feet upon the ends of the underpinning or piling of said walkway, being thereby rendered unconscious, thence down into the waters of the Savannah river over which said walkway is superimposed at this point, wherefrom he was rescued, still unconscious, by *** Mr. Walker.

"7. Petitioner shows that defendant *** had cut away and removed a large area of said north and south walkway, leaving a large opening extending the full length of said walkway and about ten feet long, which said opening *** defendant failed to barricade, fence off, or in any manner provide any safeguard around the same, and did not put a light or other warning signal in, on or around the said opening, to warn of the presence of the pitfall or mantrap which was obscured and hidden by the prevailing darkness as aforesaid, and unobservable by persons entering upon or approaching the same, and petitioner shows that it was through this unguarded opening or pitfall that he plunged and

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