Johnson v. Thompson, 41275

• Decision Date: 23 April 1965
• Docket Number: No. 3,No. 41275,41275,3
• Citation: 143 S.E.2d 51,111 Ga. App. 654
• Parties: C. A. JOHNSON v. J. H. THOMPSON et al
• Court: Georgia Court of Appeals

Page 51

143 S.E.2d 51

111 Ga.App. 654

C. A. JOHNSON v.J. H. THOMPSON et al.

No. 41275.

Court of Appeals of Georgia, Division No. 3.

April 23, 1965.

Rehearing Denied May 11, 1965.

Syllabus by the Court

1.The petition of a patron against the owner of a drive-in theatre, alleging that the plaintiff was injured as a result of the defendant's negligence in providing no walk way from the parking spaces to the snack bar in the theatre except between cars parked so close together that a person passing between them could be struck by a car door, and having posts between them with two wires running from each post attached to speaker boxes that could be placed inside the cars on either side of the post, stated a cause of action.

2.The petition did not show as a matter of law that the plaintiff in walking to the snack bar between a parked car and a post, from which a wire attached to a speaker box ran into the car door, exposed himself to a foreseeable unreasonable risk of harm and was thereby precluded from recovery.

3.The plaintiff was not precluded from recovery because at the time he was injured has purpose in walking to the snack bar was to collect a bingo prize.

In this negligence action the plaintiff assigns error on the judgment of the trial court sustaining the defendant's general demurrer to the petition.The allegations of the petition were substantially as follows: The plaintiff was a patron at the defendant's drive-in theatre and was injured as he walked between parked automobiles to the snack bar on the premises to collect a prize for a bingo game operated by the defendant during an intermission between shows.The theatre was laid out with a horse shoe shaped driveway completely encircling the parking area.Cars entered on the left side of the theatre using this driveway and drove out by this driveway on the right side of the theatre.There were several rows for parking cars to face the picture screen, with a single driveway between each parking row on which cars drove from the left side to the parking spaces and when leaving the parking spaces drove to the right side and out of the theatre.Between each parking place there was a metal post from which ran two wires four or five feet long, with a speaker box on the end of each, so that the speaker boxes could be placed inside the cars on either side of the post to permit the motion picture sound to be heard.There were several parking rows between the picture screen and the snack bar, and several rows behind the snack bar.For patrons parked in the rows between the picture screen and snack bar the defendant provided a safe walk way to the snack bar, but the defendant did not provide a safe walk way to the snack bar from the parking rows behind the snack bar, where the plaintiff was parked.In this area the parking rows extended all the way across the parking area of the theatre, leaving no walk way to the snack bar except between the parked automobiles.The theatre was no poorly lighted that persons parked in automobiles could not see persons passing between parked automobiles, and persons walking to the snack bar could not see properly how to walk between the automobiles.As the plaintiff raised the wire leading from a post between parked cars to the speaker box placed in one of the cars to pass under the wire, a person seated in the car opened the door and the door struck the plaintiff in his left eye and caused him to be seriously injured.The petition alleges that the defendant was negligent in that it did not provide a walk way from the parked cars to the snack bar that was safe from the danger of being injured by automobiles; did not provide a walk way for customers from the parking area to the snack bar other than between the parked cars; did not have the parking area lighted so that persons in automobiles and persons walking to the snack bar could see each other and see how to walk; did not take any action or instruct patrons to prevent their opening car doors into customers walking to the snack bar; and was negligent in having the parking spaces too close together for the plaintiff to pass between the parked automobiles without being in danger of being struck by automobiles.

Robert S. Horne, Macon, for plaintiff in error.

Lovejoy Boyer, Hawkinsville, Martin, Snow, Grant & Napier, Cubbedge Snow, Macon, for defendant in error.

HALL, Judge.

1.The defendant argues that the petition does not state a cause of action because there was a passageway where there were no posts and wires between the automobiles where the plaintiff could have safely walked to the snack bar.If this be true, there was no negligence in failure to furnish a safe walkway and what we say hereafter in this opinion will not be controlling.However, this fact is not shown by the allegations of the petition.This decision must be based on the facts as shown by the petition, that from the place where the plaintiff was parked there was no way provided for walking to the snack bar except between cars with a post between them and so close together that the plaintiff in passing between the post and a car could be struck by the car door.This case falls in the class of cases involving negligently constructed premises and the decisions cited by the defendant involving negligent maintenance, McCrory Stores v. Ahern, 65 Ga.App. 334, 15 S.E. 797, United Theatre Enterprises, Inc. v. Carpenter, 68 Ga.App. 438, 23 S.E. 189, involving use of premises for a use for which they were not intended, Augusta Amusements, Inc. v. Powell, 93 Ga.App. 752, 92 S.E. 720, and involving negligence toward others than invitees, Blakely v. Johnson, 220 Ga. 572, 140 S.E.2d 857, are not controlling of the facts in this case.

Two questions are involved in determining whether the defendant was negligent in arranging the theatre and snack bar as stated in the petition.Did the defendant expose its invitees to a foreseeable risk of harm?If so, was the risk unreasonable?If reasonable men could disagree on both of these questions, the issue of negligence must be...