Narjoe Timber & Supply Co. v. Hanson

• Decision Date: 21 November 1974
• Docket Number: No. 2,No. 49857,49857,2
• Citation: 211 S.E.2d 380,133 Ga.App. 506
• Court: Georgia Court of Appeals
• Parties: NARJOE TIMBER & SUPPLY COMPANY v. C. J. HANSON et al

Page 380

211 S.E.2d 380

133 Ga.App. 506

NARJOE TIMBER & SUPPLY COMPANY v. C. J. HANSON et al.

No. 49857.

Court of Appeals of Georgia, Division No. 2.

Nov. 21, 1974.

Rehearing Denied Dec. 6, 1974.

Lokey & Bowden, Glenn Frick, Atlanta, for appellant.

Fred L. Cavalli, Atlanta, for appellees.

Syllabus Opinion by the Court

DEEN, Presiding Judge.

We affirm the denial of summary judgment in this personal injury suit. The two issues raised, both of which present jury issues, are whether there was any negligence on the part of the defendant and, if so, whether the plaintiff committed negligence which was the sole proximate cause of his injuries.

Plaintiff was delivering crates of Pepsi Cola to the defendant's premises. On his first delivery to the site he was directed by one of the defendant's employees where to leave them. He first inspected the delivery point, but not by the same exact route over which he followed while pulling the handtruck loaded with bottles. The surface it was necessary to traverse was broken and rutted; a wheel of the truck went into a rut causing the load to shift, and plaintiff's back was wrenched.

The plaintiff, delivering goods ordered by the defendant, was an invitee of the latter. Nabors v. Atlanta Biltmore Corp., 77 Ga.App. 730, 49 S.E.2d 688; Morris v. Deraney, 68 Ga.App. 308, 310, 22 S.E.2d 860; Somers v. Tribble, 115 Ga.App. 282, 154 S.E.2d 620. As such a duty was owing to him to exercise ordinary care to keep the premises and approaches safe. Code § 105-401; Kreiss v. Allatoona Landing, Inc., 108 Ga.App. 427, 133 S.E.2d 602. As stated in the Kreiss case (p. 430, p. 605 of 133 S.E.2d): 'One maintaining a defective footway, walkway, or excavation on the premises through which another falls may be held guilty of actionable negligence unless it appears for other reasons that the plaintiff cannot recover. Southern Ry. Co. v. Howard, 9 Ga.App. 264, 70 S.E. 1124; Central of Georgia Ry. Co. v. Ledbetter, 46 Ga.App. 500, 168 S.E. 81; Gray v. Watson, 54 Ga.App. 885, 189 S.E. 616; Atlanta Life Ins. Co. v. Rogers, 57 Ga.App. 785, 196 S.E. 239.' Where the defendant was aware that deliveries were being made on its premises, and the plaintiff was directed by an employee, who had knowledge that the delivery was being made by handtruck to a specific point, to proceed to a point which involved pushing or pulling the truck over rough ground, whether in view of this knowledge the premises were within the standards of ordinary care which the law dictates when used for this purpose is, as against a mere motion for summary judgment, a jury question.

Nor does the fact that it was daylight and that the truck hit the rut while the plaintiff was pulling it demand a finding as a matter of law that the injury was the result of his own negligence only. The plaintiff was experienced in this sort of delivery, although he had not previously traversed the exact route involved; he chose to pull rather than push the truck because of the rough terrain; under his testimony he was closely attending to the procedure and using all possible care when a back wheel hit the rut and the load shift occurred. 'Ordinarily the facts upon which the plaintiff is barred from recovery-that he failed to avoid the consequences of the defendant's negligence which he reasonably could have apprehended, or that he voluntarily encountered a...