Herrington v. Stone Mountain Memorial Ass'n, s. 44330

• Decision Date: 11 April 1969
• Docket Number: Nos. 44330,44331,No. 1,s. 44330,1
• Citation: 119 Ga.App. 658,168 S.E.2d 633
• Parties: C. D. HERRINGTON v. STONE MOUNTAIN MEMORIAL ASSOCIATION. Alice J. HERRINGTON v. STONE MOUNTAIN MEMORIAL ASSOCIATION
• Court: Georgia Court of Appeals

Page 633

168 S.E.2d 633

119 Ga.App. 658

C. D. HERRINGTON v. STONE MOUNTAIN MEMORIAL ASSOCIATION.

Alice J. HERRINGTON v. STONE MOUNTAIN MEMORIAL ASSOCIATION.

Nos. 44330, 44331.

Court of Appeals of Georgia, Division No. 1.

April 11, 1969.

Rehearing Denied May 13, 1969.

Certiorari Granted July 24, 1969.

Syllabus by the Court

The court erred in rendering a summary judgment in favor of the appellee.

In these actions by a husband and wife for damages allegedly resulting from the defendant's negligence which caused the wife to fall and be injured on Stone Mountain, the petitions alleged substantially: At approximately 2:30 p.m., July 6, 1967, the plaintiffs and their children were paid visitors in the park controlled and supervised by the defendant association and were walking up the mountain following a path indicated by a white line painted on the granite surface. They had passed a shelter area, called the 'Half-Way House,' which was situated on a gradual incline between two-thirds and three-fourths of the way up the mountain, and were halfway up an area known as the 'hump', which begins about 50 yards past the 'Half-Way House', extends for about 100 yards and has an approximately 30 degree incline, when it started to rain. They immediately turned around and began to descend the 'hump' to seek shelter in the 'Half-Way House'. The surface of the 'hump' is smooth, solid granite with moss or lichen growing on it in the area of the path which is slippery and no guard or handrail is provided there. The rain made the surface of the granite very slippery and hazardous to walk on, but this danger was not apparent. After only a few steps, the wife slipped on the wet surface of the granite and fell down and then rolled down the incline some 100 to 200 feet, where she struck a large boulder located at the foot of the path at the beginning of the 'hump,' sustaining the alleged severe and permanent injuries for which the action is brought. The plaintiff wife had never been to Stone Mountain before, lived in south Georgia where the land is flat, and was ignorant of the dangerous condition of the granite mountain when dry or wet. The injuries were proximately caused by the defendant's negligence (a) in knowing of the dangerous and hazardous condition of the granite when dry and when wet and failing to warn the plaintiffs of such danger; (b) in failing to post signs on the mountain and in the park to warn of such danger; (c) in failing to provide a safe path to climb the mountain; (d) in failing to provide a handrail; (e) in allowing said boulder to remain in the path; (f) in failing to erect a wall on the steep side of the mountain.

The defendant filed an answer and a motion for summary judgment, based upon the pleadings and depositions of both plaintiffs and the brother of the plaintiff husband. The latter deposed that he was about 2 or 3 feet behind the plaintiff wife, who was walking alongside and holding the hand of her five-year-old son, when the boy fell; that he stooped down to grab the boy and when he looked back up she had fallen; that he did not know what caused her to fall.

The plaintiff husband deposed that they had stopped at the 'Half-Way Station' to rest for 15 or 20 minutes; that they had gotten within a third of being 'all the way' when it started raining and they decided they'd better find a shelter, so they turned around and that's when 'it happened'; that he did not know what caused her to fall.

The plaintiff wife deposed that it didn't look like rain when they began to walk up the mountain, or even when they reached the 'Half-Way House'; that when they got about three-fourths of the way up, the rain came up suddenly and hard; that they continued to walk up the mountain in the rain for about three minutes; that, as she turned around seeking the shelter of a rock formation, holding her five-year-old son by the hand, she slipped and fell; that that was all she could remember; that she did not know what caused her to fall or what happened; that she did not remember running down the mountain; that she was wearing rubber soled tennis shoes at that time; that, as she ascended the mountain, she had observed that there were no handrails; and that she had never been to Stone Mountain before or climbed up a mountain, a rock mound or a granite surface before.

In opposition to the motion, the plaintiffs filed affidavits of the same three deponents above, plus that of the plaintiff husband's sister-in-law. These affidavits supplied the additional information that the area in which the plaintiff wife fell was smooth, solid rock, which was very slippery; that, shortly after her fall, a young boy's feet had slipped out from under him at approximately that same area; and that the defendant had given them neither verbal nor written warning of the dangerous, slippery condition of the smooth granite.

The trial court granted the summary judgment in favor of the defendant in both cases, from which judgments the plaintiffs appeal.

J. H. Highsmith, Baxley, Cullen M. Ward, Frank M. Eldridge, Atlanta, for appellants.

Troutman, Sams, Schroder & Lockerman, Robert L. Pennington, Henning, Chambers, Mabry & Crichton, Eugene P. Chambers, Jr., Atlanta, for appellee.

FELTON, Chief Judge.

'Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law; otherwise, the question of what negligence, as well as whose negligence is responsible for the injury is a jury question. (citations).' Beck v Wade, 100 Ga.App. 79, 83, 110 S.E.2d 43, 47. On the motion for summary judgment the burden was on the defendant movant to produce evidence which conclusively eliminated all issues in the case, even those issues upon which the opposing parties plaintiff would have the trial burden, and the latter are given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the...