Wynne v. Southern Bell Tele-phone & Tel. Co

• Decision Date: 07 February 1925
• Docket Number: (No. 4241.)
• Citation: 126 S.E. 388,159 Ga. 623
• Court: Georgia Supreme Court
• Parties: WYNNE v. SOUTHERN BELL TELE-PHONE & TELEGRAPH CO.

159 Ga. 623

126 S.E. 388

WYNNE

v.SOUTHERN BELL TELE-PHONE & TELEGRAPH CO.

(No. 4241.)

Supreme Court of Georgia.

Feb. 7, 1925.

(Syllabus by the Court.)

The owner or occupier of land is liable in damages to an invitee who comes upon the premises for any lawful purpose, for an injury sustained by reason of such owner or occupier failing to exercise ordinary care in properly constructing such premises and keeping them and the approaches thereto safe.

(a) Generally it is a question of fact to be determined by a jury whether such owner or occupier exercised ordinary care in constructing the premises, and in keeping them in a safe condition.

(b) Where the allegations in the petition are to the effect that the owner constructed and maintained steps leading into his building, on which a party was injured in making her egress therefrom, that these steps were constructed with steel treads, with openings of approximately two inches at the back of each runner, that the heel of plaintiff's shoe, as she descended these steps, was caught in one of these openings by which she lost her balance, fell, and was injured, that the construction of these steps in the above manner rendered them dangerous, and that the owner was negligent in constructing and maintaining them with such defects, and in not providing the plaintiff, who was a patron of the owner and its invitee on the premises, with a safe way of ingress and egress, it cannot be said as a matter of law, in passing upon a general demurrer to the plaintiff's petition, that it failed to show negligence upon the part of the owner.

Considering all of the allegations referred to in the first and second questions propounded by the Court of Appeals to the Supreme Court, it cannot be held as a matter of law in passing on a general demurrer that it affirmatively appears that the plaintiff could, by the exercise of ordinary care, have avoided her injury, or that her injury was caused by her own negligence.

Upon a consideration of the allegations of fact set out in the third question, although there are no other defects than those mentioned and alleged to exist in said steps, and although there is no express allegation that the steps were not constructed in the usual and ordinary manner, it cannot be held as a matter of law in passing on a general demurrer that no negligence upon the part of the defendant is shown by the petition.

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.

(Additional Syllabus by Editorial Staff.)

Certified Questions from Court of Appeals.

Action by Mrs. W. H. Wynne against the Southern Bell Telephone & Telegraph Company. Judgment for defendant, and plaintiff brought error to the Court of Appeals, which certified questions to the Supreme Court. Questions answered.

The Court of Appeals requested instructions upon the following questions, answers to which are necessary to a decision of this case:

(1) In a suit against the owner and occupier of a building, who had constructed it, for injuries received by the plaintiff while using certain steps in the building as an invitee within the meaning of the Civil Code, § 4420, where the plaintiff alleged that the said steps, four or five in number, leading from the street level to the floor of the building, were "originally constructed with steel treads which did not entirely cover the depth of said steps, so that there remained at the back part of each runner a space of approximately two inches, " that when the plaintiff was descending the steps in leaving the building the heel of her shoe caught in the two-inch space or aperture at the rear of the runner thereon, "causing her to lose her balance and fall, " that the construction of said steps as aforesaid constituted a dangerous and unsafe place, and was a menace to those who used them, that defendant provided and offered no means of access to said building other than said steps, " and where it was alleged that the defendant was negligent "in furnishing to petitioner as a means of access to defendant's building a step the runner of which was not deep enough, so that a place some two inches wide and running the entire length of the runner was left entirely open, in failing to give petitioner any warning or notice of said defect or insufficiency, in constructing and maintaining a flight of steps with the defects and insufficiencies heretofore described, and holding same out to plaintiff as a reasonably safe way by which to enter and depart from its premises, " and "innegligently failing to provide a safe method or way of ingress and egress to petitioner, who was a patron of defendant and lawfully upon the premises, " may it be said as a matter of law that such averments, when considered on a general demurrer to the petition, fail to show any negligence on the part of the defendant?

(2) Where it was further averred in the same suit that "petitioner did not know of the manner in which they were constructed, that she did not notice said defects and insufficiencies as she went into said building, that she had no occasion to make a close and minute examination of said steps, that she was not warned or notified of any defect or insufficiency in connection with same, " that at said time and place she was a strong and able-bodied woman, and that "she was free from fault and blame in the premises and was in the exercise of ordinary care, and the injuries complained of were directly and proximately caused by the negligence of the defendant in the particulars hereinafter set forth, " may it be said as a matter of law that it affirmatively appears from such averments, taken in connection with those stated in the preceding question, considered upon a general demurrer to the petition (a) that the plaintiff could have avoided her injury by the exercise of ordinary care, or (b) that her injury was caused by her own negligence?

(3) Where the owner and occupier of a building has constructed steps for the use of his invitees in entering the building, in such a way that there remains at the back side of the tread of each step an open space running the entire length of the tread and "approximately two inches in width, " so that the heel of the shoe of an invitee is caught therein, causing the invitee to fall and suffer injury, and where such invitee sues such owner and occupier of the premises for the injury, alleging that the steps, constructed in the manner indicated, were defective and insufficient, and constituted a dangerous and unsafe place, and were a menace to those who used them, and that the defendant was negligent in constructing them in such manner, without alleging any additional fact to constitute a defect in the steps, or that they were not constructed in the usual and customary manner, may it be said as a matter of law, when such facts and conclusions alleged in the suit, without more, are considered upon a demurrer to the plaintiff's action, that no negligence upon the part of the defendant is shown in the petition? If question No. 1 is answered in the affirmative, no answer to...