Mason v. Frankel

• Decision Date: 09 May 1934
• Docket Number: No. 23764.,23764.
• Citation: 49 Ga.App. 145,174 S.E. 546
• Parties: MASON . v. FRANKEL.
• Court: Georgia Court of Appeals

49 Ga.App. 145

174 S.E. 546

MASON .

v.FRANKEL.

No. 23764.

Court of Appeals of Georgia, Division No. 1.

May 9, 1934.

Syllabus by Editorial Staff.

BROYLES, C. J., dissenting.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by R. L. Mason against Lazar Frankel. To review a judgment sustaining a general demurrer to her petition, plaintiff brings error.

Reversed.

Jas. H. Dodgen and C. E. Kay, both of Atlanta, for plaintiff in error.

John M. Slaton, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

GUERRY, Judge

1. A municipal corporation may by reasonable ordinance limit the right of an abutting owner in obstructing the sidewalk in the exercise of his legitimate business. "As against a member of the public injured as the proximate result thereof, a violation of such an ordinance is per se wrongful and negligent." William Bensel Construction Co. T. Homer, 2 Ga. App. 369, 58 S. E. 489, 490; Brooks v. City of Atlanta, 1 Ga. App. 678, 57 S. E. 1081; City of Thomasville v. Campbell, 3S Ga. App. 249, 143 S. E. 922.

L2, 3] 2. Questions as to diligence and negligence, including contributory negligence and what constitutes the proximate cause of an injury complained of, are peculiarly questions for the jury, and this court will not solve them on general demurrer unless such questions appear palpably clear. Savannah Electric & Power Co. v. Nance, 31 Ga. App. 632, 121 S. E. 690, and cases cited. Where a petition alleged that the plaintiff was proceeding along a sidewalk in the city of Atlanta about 4 o'clock p. m.; that she was injured by reason of the defendant's willful violation of a valid ordinance of the city of Atlanta in placing obstructions on said sidewalk in front of his place of business, said obstruction, along with others, being a small two wheeled truck upon which she tripped, and where it is further alleged that such truck was partially concealed behind a lard can in such a way as not to be easily seen, and by reason of the fact that the street was crowded with people and that her attention was momentarily attracted to vari-colored and attractive signs in defendant's window, placed therein by said defendant for the purpose of attracting attention, her opportunity to observe the obstruction was interfered with to such an extent that she did not, and could not, by the exercise of ordinary care, have seen the obstruction so as to avoid the same, held, the petition was not subject to the general demurrer that from the allegations of the petition it affirmatively appeared that the plaintiff was so lacking in ordinary care as to bar a recovery. Heath v. Louisville & Nashville R. Co., 39 Ga. App. 619, 147 S. E. 793; McFarland v. City of McCaysville, 39 Ga. App 739, 148 S. E. 421; Moore v. Sears, Roebuck & Co., 42 Ga. App. 658, 157 S. E. 106; Dempsey v. City of Rome, 94 Ga. 420, 20 S. E. 335; City Council of Augusta v. Tharpe, 113 Ga. 152, 38 S. E. 389: Idlett v. City of Atlanta, 123 Ga. 821, 51 S. E. 709; Southern Bell Tel. & Teleg. Co. v. Howell, 124 Ga. 1050, 53 S. E. 577, 4 Ann. Cas. 707; City of Rome v. Phillips, 37 Ga. App. 299, 139 S. E. 828; Mayor, etc., of City of Americus v. Johnson, 2 Ga. App. 378, 58 S. E. 518; MacDougald Construction Co. v. Mewborn, 34 Ga. App. 333, 129 S. E. 917; Farmer v. Georgia Power Co., 39 Ga. App. 61, 146 S. E. 40; Louisville & N. R. Co. v. McGarity, 139 Ga. 472, 77 S. E. 630. "The question as to what acts do or do not constitute negligence is for...