Moore v. Sears, Roebuck & Co.

• Decision Date: 09 January 1934
• Docket Number: 22971.
• Citation: 172 S.E. 680,48 Ga.App. 185
• Parties: MOORE v. SEARS, ROEBUCK & CO.
• Court: Georgia Court of Appeals

172 S.E. 680

48 Ga.App. 185

MOORE v. SEARS, ROEBUCK & CO.

No. 22971.

Court of Appeals of Georgia, Second Division

January 9, 1934

Syllabus by Editorial Staff.

Failure of injured person to exercise ordinary care before negligence complained of was apparent, or should have been reasonably apprehended, will not preclude recovery, but will authorize jury to diminish damages in proportion to fault attributable to person injured (Civ. Code 1910, § 4426).

Comparative negligence rule is applicable to injury received by invitee as result of failure to observe patent defect in premises (Civ. Code 1910, § 4426).

Where comparative negligence doctrine is applicable, jury's discretion in comparing negligence of parties is unrestrained, and their finding for plaintiff in such case of only nominal amount will not be disturbed (Civ. Code 1910, §§ 4399, 4426).

In suit for loss of services of wife, injured in falling over chain suspended across corridor of defendant's building, case held for jury under comparative negligence doctrine (Civ. Code 1910, § 4426).

Verdict for $1 in suit for loss of services of wife, injured in falling over chain suspended across corridor of defendant's building, held conclusive, in case submitted under comparative negligence doctrine (Civ. Code 1910, §§ 4399, 4426).

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

Suit by L. E. Moore against the Sears, Roebuck & Company. To review the judgment, after his motion for a new trial was overruled plaintiff brings error.

Affirmed.

Burress & Dillard, of Atlanta, for plaintiff in error.

Alston Alston, Foster & Moise and Henry J. Miller, all of Atlanta for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

1. In this state, except where the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, "the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." Civ. Code 1910, § 4426. Under this rule of comparative negligence, "failure to exercise ordinary care on the part of the person injured before the negligence complained of is apparent or should have been reasonably apprehended will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured." Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (1, 2), 39 S.E. 306, 54 L.R.A. 802. "Where the owner or occupier of premises fails to exercise ordinary care in keeping reasonably safe such premises for the use of those who go upon them as invitees, and where such an invitee is injured by a patent defect in such premises of which the injured party has no actual knowledge, it cannot be held as a matter of law that such injured party was lacking in ordinary care in failing to observe the defect in time to avoid the injury." But in such a case, if plaintiff was negligent, the comparative negligence rule may be applied. Wynne v. So. Bell Tel. & Teleg. Co., 159 Ga. 623 (4), 629, 126 S.E. 388. Where such an invitee, or other plaintiff in a tort case, proves his case as laid, and the evidence is of such nature as to authorize a finding that, while the defendant was negligent as charged, the plaintiff's injury was caused by the concurrent negligence of himself and the defendant, and his own negligence, not amounting to a total lack of ordinary care, was less than the negligence of the defendant, the jury will be unrestrained in comparing the negligence of the parties. They are the "chemists" with the right "to examine every molecule of the evidence, and to feel every shock and tremor of its probative force"; and their finding for the plaintiff in such a case of only a nominal amount will not be disturbed. Vickers v. Altanta & W. P. R. Co., 64 Ga. 306; Evans v. Central of Ga. R. Co., 38 Ga.App. 146, 147, 148, 142 S.E. 909. Anglin v. City of Columbus,

128 Ga. 469, 470, 57 S.E 780, 781, Potter v. Swindle, 77 Ga. 419, 423 (2), 3 S.E. 94, Travers v. Macon Ry. & Light Co., 19 Ga.App. 15, 90 S.E. 732, and like cases, compensatory or exemplary or more than merely nominal damages were demanded under the evidence, or "there was no evidence upon which the jury...