Cuthbert v. Schofield, (No. 16767.)

• Court: Georgia Court of Appeals
• Writing for the Court: JENKINS
• Citation: Cuthbert v. Schofield, 35 Ga.App. 443, 133 S.E. 303 (Ga. App. 1926)
• Decision Date: 15 May 1926
• Docket Number: (No. 16767.)
• Parties: CUTHBERT . v. SCHOFIELD.

35 Ga.App. 443

133 S.E. 303

CUTHBERT .

v.SCHOFIELD.

(No. 16767.)

Court of Appeals of Georgia, Division No. 2.

May 15, 1926.

(Syllabus by Editorial Staff.)

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Suit by Ida Cuthbert against J. S. Schofleld. Judgment for defendant, certiorari was denied by the superior court, and plaintiff brings error. Affirmed.

L. D. Moore and B. Cubbedge Snow, both of Macon, for plaintiff in error.

Jones, Park & Johnston, of Macon, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J. [1] 1. "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Civil Code 1910, § 4420. Where, however, the petition of the injured invitee fails to allege that the owner and occupier of the premises had actual knowledge of the decayed condition of the underside of the upper steps of the outside stairway, but does allege that the upper step which gave way "was apparently sound and in safe condition, " and bases her petition upon the theory that it was the absolute duty of the owner to make an inspection of the premises, for the purpose of keeping them in repair, irrespective of any apparent fact or circumstance which might, to a reasonably prudent person, in the exercise of ordinary diligence, indicate the necessity of any such inspection, the trial judge did not err in dismissing the petition on demurrer, and the judge of the superior court did not err in refusing to sanction the certiorari. The degree of diligence required by the quoted Code section in keeping the premises safe is not stated as consisting either of slight diligence or of extraordinary diligence, but is stated to consist of ordinary care, such as a prudent householder might reasonably be expected to exercise. In the absence of actual knowledge of the defect in the step, the top of which was exposed to the rain and the underside of which to the air, and which "was apparently sound and in a safe condition, " it would seem that to require an inspection of the underside of such a step in order to ascertain if, contrary, to appearances, it was in fact in an unsound and unsafe condition, would be to demand the exercise of a most extraordinary degree of diligence. The rule here announced is not in conflict with the decision...