Delta Air Lines, Inc. v. Millirons

• Decision Date: 05 December 1952
• Docket Number: No. 1,No. 34230,34230,1
• Citation: 73 S.E.2d 598,87 Ga.App. 334
• Parties: DELTA AIR LINES, Inc. v. MILLIRONS
• Court: Georgia Court of Appeals

Page 598

73 S.E.2d 598

87 Ga.App. 334

DELTA AIR LINES, Inc. v. MILLIRONS.

No. 34230.

Court of Appeals of Georgia, Division No. 1.

Dec. 5, 1952.

Rehearing Denied Dec. 19, 1952.

Syllabus by the Court.

1. The exception to the ruling on demurrers to the petition is treated as abandoned.

2-4. The verdict was supported by the evidence, and the charges complained of in the first and second special grounds of the motion for a new trial were not erroneous for any of the reasons assigned.

5. The time limitations for giving notice of claim and for bringing suit for injuries arising out of the transportation of a passenger, as set out in the defendant's tariff regulations, were not applicable under the facts of this case, and the trial judge did not err in excluding from evidence the plaintiff's ticket and the extract from the defendant's tariff regulations, as complained of in the third special ground of the motion for a new trial.

6. The trial judge properly overruled the defendant's motion for a new trial.

Harris, Russell, Weaver & Watkins, Macon, for plaintiff in error.

T. A. Jacobs, Edward F. Taylor and Carlisle & Bottle, Macon, for defendant in error.

SUTTON, Chief Judge.

S. W. Millirons filed suit against Delta Air Lines, Inc., on November 18, 1948, for damages arising from personal injuries sustained by Millirons while going from one of the defendant's airplanes, on which he had been a passenger, to his car, which was in a parking area at the Herbert Smart Airport near Macon. General and special demurrers to the petition were overruled, and the defendant excepted pendente lite. The trial resulted in a verdict in favor of the plaintiff. The defendant's motion for a new trial was overruled. The exception here is to the refusal of a new trial, and to the overruling of the defendant's demurrers to the petition.

1. The exception to the lower court's ruling on the demurrers to the petition is neither argued nor insisted upon by the plaintiff in error, and is therefore treated as abandoned.

2. The evidence shows that Millirons, the plaintiff, was a passenger on several connecting air lines in making a trip from Los Angeles, California, to Macon, Georgia. He traveled via Delta Air Lines on the last stage of the trip, from Atlanta to Macon, and arrived at Macon at about 9:30 p. m., on September 23, 1947. It was raining then, and Millirons got off of the airplane with his infant grandchild in his arms. Members of his family met him at a fence or barrier by the landing surface. One of them held an umbrella over Millirons and the child as they proceeded from the fence, across an open space, and to their car, which was parked beside the defendant's administration building at the edge of the landing field. Millirons was not familiar with the grounds at the airport. A floodlight near the top and on the front of the defendant's office building was burning to light the way from the field to the building, and this light was in Milliron's eyes as he went to his car, which was parked about seven or eight feet from the side of the building. In front of the building, and three feet in front of the plaintiff's car, there was a concrete wall, about ten inches high, which served to keep automobiles from going onto the landing field. The portion of the wall in front of the car was in the shadow of the defendant's administration building. As the plaintiff came to the car, he went to his left and the person holding the umbrella went to the right; they intended to enter on opposite sides of the automobile. The plaintiff stumbled on the wall, fell against the front of the car, and thereby sustained the internal in juries for which he sought damages.

While it is argued in support of the general grounds of the motion for a new trial that the plaintiff failed to show actionable negligence on the defendant's part, the jury was authorized to find that the defendant failed to exercise ordinary care to prevent injury to its passengers on the premises which it should have expected them to use in coming from night flights, by maintaining a brief light which passengers leaving the field would face before entering the unlighted parking area across the low concrete wall. The duty of the defendant carrier by air in respect to the maintenance of its premises for the use of arriving or departing passengers is the same as that of any owner or occupier of land to those whom he induces, by express or implied invitation, to enter his premises for lawful purposes, and that duty is to exercise ordinary care in keeping the premiss and approaches safe. Code, § 105-401; Coffer v. Bradshaw, 46 Ga.App. 143, 148, 167 S.E. 119. The jury was authorized by find that the defendant's breach of this duty to the plaintiff was the proximate cause of the plaintiff's injury, and the verdict was supported by the evidence.

3. In the first special ground of the motion for a new trial, error is assigned on the following charge to the jury: 'Our law further provides that a carrier must maintain its premises in a reasonably safe condition for the uses to which they are adapted, including the purposes of ingress and egress by its passengers, and a carrier is liable to one who is its passenger for injuries to such passenger occasioned by the carrier's failure to exercise ordinary care to so maintain its premises. Now, should you determine from the evidence in this case that there was more than one apparently safe route by which parties departing from airplanes might leave the landing field of the defendant carrier on foot, in the absence of notice from the airplane carrier to use a particular route, then such passenger would be at liberty to use any route which appeared to him as a reasonably prudent person to be intended for such use by passengers, and as to him, the air line company, the defendant in this case, was bound to see that all such routes apparently intended for use and which appeared to the passenger to be reasonably safe for use, were in fact reasonably safe and sufficient. Whether the route selected by the passenger was or was not apparently safe to any person exercising ordinary care, is a question of fact for the jury: if the route selected by the passenger appeared to him to be reasonably safe and to be intended for use in leaving the premises and you find in fact it was not reasonably safe for such purpose, then the defendant would be liable for such damages as the plaintiff sustained as a proximate result thereof, if you find that the plaintiff exercise ordinary care. I charge you gentlemen further that this duty to so keep its premises safe for its passengers applies to defects or conditions which are in the nature of hidden dangers and the like, and which the passengers in the exercise of ordinary care would not observe and were not known to the passenger. A carrier is not an insurer of the safety of its passengers but it owes to its passengers only the duty of exercising ordinary care for their protection while on their premises and while the relationship of carrier and passenger exists, all as I have heretofore charged you.'

This charge is contended to have been confusing and misleading to the jury, by imposing an absolute duty upon the defendant to maintain its premises in a safe condition and by confusing that rule with the true rule that the defendant must exercise ordinary care to keep its premises safe. It is also contended that the charge placed a more onerous duty upon the defendant with respect to maintaining its premises than is imposed by law, and that this absolute duty, as imposed by the charge, was not a duty imposed by penal statute so that its breach would amount to negligence per se, but was given such effect in the charge.

The charge did not impose an absolute duty upon the defendant, but rather a relative one, to keep its premises reasonably safe; that is, not absolutely free from risk or danger, but only reasonably so. To remove any doubt in the minds of the jury as to the degree of safety required, this charge makes it clear that the defendant should have maintained its premises with ordinary care to protect its departing passengers from injury. In short, a reasonably prudent man, exercising ordinary care to protect invitees upon his premises from injury, would be said to keep his premises reasonably safe.

In Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145, 148, 4 S.E. 759, 760, from which Code, § 105-401 was derived, the following expression is used: 'It was therefore incumbent on the defendant, according to the rule above stated [Code § 105-401, in substance], to see that the approach to the mill was reasonably safe for the persons whom he had invited to come thereto.' Some other cases in which the duty to keep premises 'reasonably safe' is treated as equivalent to the duty to use 'ordinary care to keep one's premises safe' are as follows: Coffer v. Bradshaw, 46 Ga.App. 143, 148, 167 S.E. 119, supra; Rogers v. McKinley, 48 Ga.App. 262, 266(3, 4), 172 S.E. 662; Lake v. Cameron, 64 Ga.App. 501, 505, 13 S.E.2d 856; Atlanta Terminal Co. v. Johnson, 15 Ga.App. 22, 26, 82 S.E. 629.

It is further contended that the charge quoted was error because it instructed the jury to determine the apparent safety of the plaintiff's route from the airplane to his car in terms of the plaintiff's own reactions to the conditions of the route which he selected, rather than by the standard of the reactions, of an ordinarily prudent man. However, the charge was sufficiently qualified in this respect by requiring that the route selected by the plaintiff must have appeared to him, in the exercise of ordinary care, to be safe. The charge complained of in the first special ground of the motion was not erroneous for any of the reasons assigned.

4. The second special ground assigns error on a portion of the charge to the effect that the plaintiff could not recover if his negligence was greater than the defendant's, and this charge is...