McKnight v. Guffin

• Decision Date: 12 July 1968
• Docket Number: Nos. 43340,43341,No. 1,s. 43340,1
• Citation: 162 S.E.2d 743,118 Ga.App. 168
• Parties: Mrs. F. G. McKNIGHT v. Thomas GUFFIN et al. Fred G. McKNIGHT v. Thomas GUFFIN et al
• Court: Georgia Court of Appeals

Page 743

162 S.E.2d 743

118 Ga.App. 168

Mrs. F. G. McKNIGHT v. Thomas GUFFIN et al.

Fred G. McKNIGHT v. Thomas GUFFIN et al.

Nos. 43340, 43341.

Court of Appeals of Georgia, Division No. 1.

July 12, 1968.

James O. Goggins, Atlanta, for appellant.

Troutman, Sams, Schroder & Lockerman, T. M. Smith, Jr., Gerald P. Thurmond, Hurt, Hill & Richardson, James C. Hill, Arnold Wright, Jr., Atlanta, for appellees.

Syllabus Opinion by the Court

WHITMAN, Judge.

On motion for directed verdict 'questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for a jury, and a court should not take the place of a jury in solving them, except in plain and indisputable cases.' Peck v. Baker, 76 Ga.App. 588(1a), 46 S.E.2d 751. The question presented to a trial court by a motion for summary judgment is substantially the same as that presented by a motion for directed verdict. Dykes v. Hammock, 116 Ga.App. 389(1), 157 S.E.2d 524. The essence of both motions is that there is no genuine issue of material fact to be resolved by the trier of the facts, and that the movant is entitled to judgment on the law applicable to the established facts. 6 Moore's Federal Practice 2d, Par. 560.4(2) at page 2066.

2. "The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.' 20 R.C.L. 56, § 52. (Emphasis supplied.)' Gibson v. Consolidated Credit Corp., 110 Ga.App. 170, 173, 138 S.E.2d 77, 79.

3. 'One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.' Barrow v. James, 107 Ga.App. 377, 378, 130 S.E.2d 352, 353; Code § 105-603.

4. The facts adduced in the present cases on the hearing of defendants' motions for summary judgment are set forth in the deposition of Mrs. McKnight of date May 25, 1967, and in her later affidavit of date September 20, 1967, and in an affidavit of her husband, Mr. McKnight, of date September 20, 1967. Insofar as there are contradictions in the deposition and affidavit of Mrs. McKnight, the deposition is controlling. Dykes v. Hammock, 116 Ga.App. 389, 390, 157 S.E.2d 524, 525. See also Scott v. Gulf Oil Corp., 116 Ga.App. 391, 157 S.E.2d 526.

The controlling facts as set forth in Mrs. McKnight's deposition show that plaintiff, Mrs. McKnight, was injured when she tripped and fell while traversing a row of stepping stones leading from a parking area to the front entrance of defendants' business offices, she testifying at least seven times that she tripped. It also appeared that plaintiff,...