Tybee Amusement Co v. Odum

• Decision Date: 08 March 1935
• Docket Number: No. 24442.,24442.
• Citation: 51 Ga.App. 1,179 S.E. 415
• Parties: TYBEE AMUSEMENT CO. v. ODUM.
• Court: Georgia Court of Appeals

51 Ga.App. 1

179 S.E. 415

TYBEE AMUSEMENT CO.

v.ODUM.

No. 24442.

Court of Appeals of Georgia,

Division No. 1.

March 8, 1935.

Syllabus by the Court.

1. "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such person for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Civ. Code 1910, | 4420.

(a) Such owner or occupier of land is liable for failure to warn his invitees of dangers or defects in such premises or instrumentalities, of which he knew or of which it was his duty to know in the exercise of ordinary care. Fuller v. Louis Steyerman & Sons, 46 Ga. App. 830, 169 S. E. 508.

(b) In case of defective construction, notice to the landlord or occupier is conclusively presumed. Fuller v. Louis Steyerman & Sons, supra, and cases cited.

2. In an action for damages for the alleged negligence of the defendant in a case of this character, it is not necessary for the plaintiff to negative any negligence or want of care on his part. This is a matter of defense, and in such a case the petition in this respect will be good against demurrer unless from the averments it is made to affirmatively appear that the injuries complained of were the result of the plaintiff's own negligence or failure to exercise ordinary care.

3. Questions as to diligence and negligence, including contributory negligence and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, such as this court will decline to solve on demurrer except in palpably clear, plain, and indisputable cases.

4. The acts of the plaintiff set forth in the present petition are not such as to makeit affirmatively appear that the plaintiff, by the exercise of ordinary care, could have avoided the alleged negligent acts of the defendant, and the court did not err in overruling the general demurrer.

5. The grounds of the special demurrer were properly overruled.

Error from City Court of Savannah; Davis Freeman, Judge.

Petition by Mrs. Annie Odum against the Tybee Amusement Company. To review a judgment overruling demurrers to the petition, defendant brings error.

Affirmed.

Ernest J. Haar, of Savannah, for plaintiff in error.

Oliver & Oliver, of Savannah, for defendant in error.

GUERRY, Judge.

Mrs. Annie Odum brought her action against the Tybee Amusement Company, alleging substantially the following case: She went, as a paid customer, to attend a public dance given at the Tybrisa Pavilion, which was being operated by the defendant company. The floor of the pavilion, while large and commodious, is defective and dangerous, both in original construction and in maintenance and operation. Along the north side of the building there is a flooring about twenty feet wide. South of this portion of the floor, and about twenty feet from the north edge of the pavilion, the floor for dancing and seating the public is elevated six or eight inches above the remainder of the floor. The dance floor proper is surrounded by a line of iron piping, three or four feet from the floor, in which are entrances through which the public enters the dance floor. The lighting of the pavilion is such that, during the music and dancing, lights may be controlled and dimmed, or various colored lights may be thrown upon the dancers. If the floor level of the pavilion were the same throughout, the lighting arrangements might be sufficient to enable any person to walk without injury, but because the floor containing the seating accommodations and the dance floor is elevated above the remainder of the flooring, the lighting is defective and inadequate, and especially so when the lights are dimmed or extinguished; there being no floor lights, nor any other arrangement to light, or to indicate, this difference in floor level. Such lighting is necessary to the safety of the public when...