Wynne v. Southern Bell Telephone & Telegraph Co.

• Decision Date: 07 February 1925
• Docket Number: 4241.
• Citation: 126 S.E. 388,159 Ga. 623
• Parties: WYNNE v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.
• Court: Georgia Supreme Court

126 S.E. 388

159 Ga. 623

WYNNE v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.

No. 4241.

Supreme Court of Georgia

February 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.

Questions of contributory negligence lie peculiarly within province of jury.

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.

R. B Blackburn, and Hewlett & Dennis, all of Atlanta, for plaintiff in error.

McDaniel & Neely, and W. O. Wilson, all of Atlanta, for defendant in error.

HARDEMAN Circuit Judge.

1. The owner or occupant of land is liable in damages to an invitee who goes upon his premises for any lawful purpose, for an injury occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. Civil Code 1910, § 4420; Mandeville Mills v. Dale, 2 Ga.App. 607, 58 S.E. 1060. Such liability may arise from defective construction. Ross v. Jackson, 123 Ga. 657, 51 S.E 578. Whether such owner or occupant exercises ordinary care in keeping his premises, upon which an invitee goes and is injured, in a safe condition, is generally a question of fact to be determined by the jury. Questions of negligence lie peculiarly within the province of the jury, and the court should not take the place of the jury in solving them. Except where particular acts are declared to be negligence by some public law, it is a question for determination by the jury whether they do or do not constitute negligence. Ga. R. Co. v. Neely, 56 Ga. 540; Atlanta, etc., Ry. Co. v. Hudson, 123 Ga. 108, 51 S.E. 29; Stewart v. Mynatt, 135 Ga. 637, 70 S.E. 325. "Negligence is a question for the jury; the judge has no right to determine what constitutes negligence." Woolfolk v. Macon Ry. Co., 56 Ga. 457. Under the allegations set out in the first question, to the effect that the owner constructed and maintained steps to its building, leading from the street into the building, on which the plaintiff as an invitee was injured in making her egress therefrom, that these steps were constructed with steel treads which did not entirely cover the depth of the steps, but left an opening at the back of each runner, that the heel of the plaintiff's shoe as she descended these steps was caught in the opening of one of the runners of said steps, by which she lost her balance, fell, and was injured, that the construction of these steps as aforesaid constituted a dangerous and unsafe place, that the owner provided no means of access to said building other than said steps, and that the owner was negligent in constructing and maintaining said steps with such defect, and in not providing a safe way of ingress and egress to the plaintiff, who was a patron of the owner, and who was lawfully upon the premises, it may not be held as a matter of law, in passing upon a general demurrer, that the petition failed to show any negligence upon the part of the owner. We cannot say under these allegations, as a matter of law, that...