Building Investments, Inc. v. Jackson

112 S.E.2d 359, 100 Ga. App. 827, 1959 Ga. App. LEXIS 737

Opinions

Quillian, Judge.

The allegations of the petition show the plaintiff occupied the status of an invitee on the defendant’s premises and that the defendant failed to exercise ordinary care to keep the premises safe for her use. Southern Ry. Co. v. Howard, 9 Ga. App. 264 (70 S. E. 1124); Coffer v. Bradshaw, 46 Ga. App. 143 (6) (167 S. E. 119); Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 (116 S. E. 17). The petition did not disclose, as contended by the defendant, a failure of the plaintiff on the occasion of her injury to exercise ordinary care. The allegation that water blending in color with the color of the walkway filled the crack or depression into which the plaintiff stepped, gave a plausible reason for her inability to discern the presence of the crack or depression. Rich’s, Inc. v. Townsend, 94 Ga.App. 761 (96 S. E. 2d 332); Pilgreen v. Hanson, 94 Ga. App. 423 (94 S. E. 2d 752).

“The rule has been thoroughly established by the appellate courts many times that negligence, whose negligence and what negligence are questions ordinarily peculiarly for the determination of a jury, and the appellate courts have declined time and time again to solve such questions on demurrer except in cases where such questions appear palpably clear, plain and indisputable. See Alford v. Ziegler, 65 Ga. App. 294 (16 S. E. 2d 69); Moore v. Shirley, 68 Ga. App. 38 (3) (21 S. E. 2d 925); Georgia Power Co. v. Blum, 80 Ga. App. 618 (57 S. E. 2d 18); Trammell v. Matthews, [84 Ga. App. 332, 66 S. E. 2d 183], supra, and Rogers v. Johnson, [94 Ga. App. 666, 96 S. E. 2d 285], supra.” Sheppard v. Martin, 100 Ga. App. 164, 166 (110 S. E. 2d 429).

“Questions as to negligence and contributory negligence are, except in plain and indisputable cases, for the determination of the jury, and where the allegations of the petition do not, even when construed against the pleader, demand the conclusion that the plaintiff’s own negligence so preponderated as to preclude a recovery by her, this issue should be left for determination by a jury.” Shattles v. Blanchard, 87 Ga. App. 15 (2) (73 S. E. 2d 112).

The trial court did not err in overruling the defendant’s general demurrer to the petition as amended.

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle, and Nichols, JJ., concur. Felton, C. J., dissents.