Seward v. Draper

• Decision Date: 26 January 1901
• Citation: 37 S.E. 978,112 Ga. 673
• Parties: SEWARD. v. DRAPER et al.
• Court: Georgia Supreme Court

112 Ga. 673

37 S.E. 978

SEWARD.

v.DRAPER et al.

Supreme Court of Georgia.

Jan. 26, 1901.

NEGLIGENCE—PERSONAL INJURIES— EVIDENCE.

One who entered a building undergoing alterations, and' who sustained personal injuries because of an attempt to make his exit therefrom through a window the framing of which was insecurely fastened, could not, though his entry was lawful, and though he honestly believed that in the existing condition of the premises it was safe and proper to use the window as a means of exit, hold the owners of the building liable for those injuries, when his presence therein was not by their invitation, either express or implied, and they in no way induced him to put the window in question to such a use.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by W. I. Seward against E. E. Draper and others. Judgment for defendants. Plaintiff brings error. Affirmed.

The following are the petition and the amendment thereto:

Petition

"To the City Court of Atlanta, Said County: The petition of Walter I. Seward, complaining of Mrs. E. E. Draper, Mrs. Jesse McKee, and Mrs. Anna E. Wright, shows the following: (1) Said Mrs. E. E. Draper and Mrs. Jesse McKee reside in said county of Fulton. (2) Said Mrs. Anna E. Wright resides in the county of Floyd, said state. (3) Said defendants are the owners of certain real estate on the north side of N. Pryor street, in the city of Atlanta, said county, bounded on the northwest by Edgewood avenue, and on the south by Decatur street, known as the 'Old Moore-Marsh Bldg.' (4) They have recently undertaken to repair same and change the partitions, and to cut up the first floor, originally one storeroom, into several rooms. (5) Petitioner is a barber by trade, and employed by J. C. Klein, and. has heretofore been the foreman in said Klein's shop. Said Klein was negotiating with defendants for the occupancy of that portion of the first or ground floor which had been partitioned off, on corner of Edge-wood Ave. and N. Pryor St., and had secured an option thereon. (6) He desired petitioner, as his employe and foreman, to go with him to said store or room, and look over same, its openings, shape, etc., etc., and suggest the location of barber chairs and the other appointments of a barber shop. (7) On or about November 1, 1899, petitioner, at the request of said Klein, and for the purpose stated, went to said building. (8) They entered the building at the door on Pryor street, and sought out Mr. Geo. E. Murphey, who was employed by defendants to superintend the alterations of said building, and who was there in actual charge of same for defendants, and, stating their purpose as above set out, were invited by said Murphey to go back to said room and in spect the same. (9) At that time there was no entrance through a door to said room from Pryor St., same not having been cut out of the wall, and petitioner and Klein walked inside the building down to the room partitioned off for a storeroom, on corner of Edgewood Ave. and Pryor St., and, reaching same, entered through a skeleton partition. (10) After inspecting same, they started out to Edgewood Ave. There.was no door at that time leading from said room to the street, but there was a large window opening to Edgewood Ave., near Pryor street. Beneath this the floor was open for a few feet, by reason of the removal of a vault formerly built into the wall and floor. (11) Said Klein seized the framework of the said window and stepped upon the frame, and thence into the street Petitioner followed him, and, taking hold of said framework, lifted himself towards the window, when the said framework gave way, and petitioner fell back through the opening in the floor to the basement beneath. (12) Petitioner shows that window was the then only exit from said room, and was used by the workmen and others having need to enter or leave said room, to and from the street. (13) The framework in and round said window had been removed by defendants, and in replacing same they had failed to fasten same; and, when seized, in leaving said room, —such a use as might be expected to be made of same, in the then condition of the building, —it was unsafe and dangerous, and defendants were grossly negligent therein. (14) Petitioner had no knowledge of this danger, and was using all care and circumspection in leaving said room. (15) Said defendants were guilty of negligence in inviting petitioner to enter said room without notifying him of said danger, and warning him not to leave by said exit. (16) Said defendants were further negligent in failing to close said exit, in its then dangerous condition, and in not, by placard or watchman, forbidding its use. (17) Said defendants were negligent in that they held out said premises as ready for inspection ' by prospective tenants, and invited petitioner, knowing his purpose was to inspect said room, especially with regard to the opening, and knowing, or should have known, that in the course of the inspection they would exit from the window, and in failing to have the framework in said window fastened so that any one using it would not fall back into the hole beneath. (18) Having failed to fasten said framework,...