Boyd v. Gardner

Court of Appeals of Georgia

Boyd v. Gardner

9 S.E.2d 202, 62 Ga. App. 662, 1940 Ga. App. LEXIS 396

CourtCourt of Appeals of Georgia

DecidedMay 13, 1940

Docket28283.

StatusPublished

Cited by2 cases

This text of 9 S.E.2d 202 (Boyd v. Gardner) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Boyd v. Gardner, 9 S.E.2d 202, 62 Ga. App. 662, 1940 Ga. App. LEXIS 396 (Ga. Ct. App. 1940).

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Opinions

Felton, J.

(After stating the foregoing facts.) As against general demurrer the petition set forth a cause of action-for maintaining premises in such a way that a dangerous and treacherous situation existed as to a- person going from the studio room down the passageway to the lobby. (It would not be negligence to fail to conduct the petitioner, in the absence of knowledge of her infirmities.) The serious question in the case is whether the petition showed on its face that the plaintiff was guilty of such negligence as would bar her recovery; specifically, having ascended the *665 step in going into the passageway, whether she could have been charged with knowledge of the elevation, and be presumed to be capable of remembering the step-down on her return from the studio, when, under the allegations, a jury would be authorized to find that the situation presented to one going from the passageway to the lobby an appearance different from what it was to one going from the lobby to the passageway. This almost identical question was decided by this court in Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (179 S. E. 415), in which it was held that an invitee, going upon an elevated floor when the lights were bright, was not charged with the duty of recollecting the step-down when the lights were dim. In view of that ruling, and of the plaintiff’s poor eyesight, it can not be said as a matter of law that the plaintiff’s own negligence, if any, would bar a recovery. She might have been less negligent than the defendant, and still be entitled to recover if she could not have avoided the injury by the exercise of ordinary care. See Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060). This case is distinguishable from Executive Committee of the Baptist Convention v. Wardlaw, 180 Ga. 148 (178 S. E. 55), reversing Wardlaw v. Executive Committee of the Baptist Convention 47 Ga. App. 595 (170 S. E. 830). In that case it was not alleged why the injured person could not have seen the step-down by the exercise of ordinary care. The court did not err in overruling the demurrers.

Judgment affirmed.

Stephens, P. J., concurs.

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Felton, J.

(After stating the foregoing facts.) As against general demurrer the petition set forth a cause of action-for maintaining premises in such a way that a dangerous and treacherous situation existed as to a- person going from the studio room down the passageway to the lobby. (It would not be negligence to fail to conduct the petitioner, in the absence of knowledge of her infirmities.) The serious question in the case is whether the petition showed on its face that the plaintiff was guilty of such negligence as would bar her recovery; specifically, having ascended the *665 step in going into the passageway, whether she could have been charged with knowledge of the elevation, and be presumed to be capable of remembering the step-down on her return from the studio, when, under the allegations, a jury would be authorized to find that the situation presented to one going from the passageway to the lobby an appearance different from what it was to one going from the lobby to the passageway. This almost identical question was decided by this court in Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (179 S. E. 415), in which it was held that an invitee, going upon an elevated floor when the lights were bright, was not charged with the duty of recollecting the step-down when the lights were dim. In view of that ruling, and of the plaintiff’s poor eyesight, it can not be said as a matter of law that the plaintiff’s own negligence, if any, would bar a recovery. She might have been less negligent than the defendant, and still be entitled to recover if she could not have avoided the injury by the exercise of ordinary care. See Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060). This case is distinguishable from Executive Committee of the Baptist Convention v. Wardlaw, 180 Ga. 148 (178 S. E. 55), reversing Wardlaw v. Executive Committee of the Baptist Convention 47 Ga. App. 595 (170 S. E. 830). In that case it was not alleged why the injured person could not have seen the step-down by the exercise of ordinary care. The court did not err in overruling the demurrers.

Judgment affirmed.

Stephens, P. J., concurs.

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9 S.E.2d 202, 62 Ga. App. 662, 1940 Ga. App. LEXIS 396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-gardner-gactapp-1940.

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