Nechtman v. Ben Thorpe & Co.
| Decision Date | 27 May 1959 |
| Docket Number | No. 2,No. 37651,37651,2 |
| Citation | 109 S.E.2d 633,99 Ga.App. 626 |
| Parties | Jack NECHTMAN v. BEN THORPE & COMPANY, Inc |
| Court | Georgia Court of Appeals |
Vincent P. McCauley, Columbus, for plaintiff in error.
Young, Hollis & Moseley, Howell Hollis, Columbus, for defendant in error.
Syllabus Opinion by the Court.
1. Where the evidence adduced upon the trial of the case showed that the plaintiff, who had gone upon the defendant's premises at the invitation and request of an agent of the defendant to take pictures of certain defective construction thereon, and while so engaged in broad open daylight and while endeavoring to focus his camera on an object which he desired to photograph, stepped backward into an excavation some 15 to 18 feet deep which was adjacent to a wall erected therein, which excavation was some 5 or 10 feet wide at the top when measured from the edge of the embankment thereof to the line of the wall, and some 2 feet wide at the bottom and which was plainly visible to the plaintiff had he looked, such evidence demanded a verdict for the defendant, since the plaintiff could, by the exercise of ordinary care on his part, have avoided any negligence on the part of the defendant in maintaining such excavation on its premises, and the trial court did not err in granting a proper and timely motion for a judgment notwithstanding the verdict and in entering judgment for the defendant after the jury had returned a verdict for the plaintiff. National Bellas-Hess Co. v. Patrick, 49 Ga.App. 280(1), 175 S.E. 255; Tinley v. F. W. Woolworth Co., 70 Ga.App. 390, 28 S.E.2d 322; Lane Drug Stores, Inc. v. Story, 72 Ga.App. 886, 35 S.E.2d 472; Banks v. Housing Authority of the City of Atlanta, 79 Ga.App. 313, 53 S.E.2d 595; Bessman v. Greyhound Bus Depot of Atlanta, Inc., 81 Ga.App. 428, 58 S.E.2d 922; Executive Committee of Baptist Convention v. Wardlaw, 180 Ga. 148, 178 S.E. 155, reversing 47 Ga.App. 595, 170 S.E. 830.
2. Under the evidence adduced in this case the allegedly dangerous and defective condition of the defendant's premises which caused the plaintiff's injury could have been seen by the plaintiff had he looked. The evidence shows that the defendant was in the process of constructing a shopping center on the premises where the injury occurred; that the buildings thereon were at the time of the injury in an incomplete condition, and the terrain was in the process of being graded or had recently been graded and was...
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...Court of Appeals erred in relying on Batson-Cook Co. v. Shipley, 134 Ga.App. 210, 214 S.E.2d 176 (1975) and Nechtman v. B. Thorpe & Co., Inc., 99 Ga.App. 626, 109 S.E.2d 633 (1959), because these cases concern motions for directed verdict and this is a summary judgment case. It also erred i......
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Wakefield v. A. R. Winter Co.
...into an excavation while endeavoring to focus his camera, as supporting a judgment n.o.v. for the defendant, Nechtman v. B. Thorpe & Company, 99 Ga.App. 626, 109 S.E.2d 633, or that of a plaintiff who, in her own home, stepped into an open hole left by the removal of a floor furnace, who te......
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...and do not constitute unusual hazards. Baxley v. Williams Const. Co., 98 Ga.App. 662, 670, 672, 106 S.E.2d 799; Nechtman v. Ben Thorpe & Co., 99 Ga.App. 626, 109 S.E.2d 633. The same is true of planks loosely or insecurely placed across the ditches for the use of workmen engaged in building......
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