Gray v. Watson

189 S.E. 616, 54 Ga. App. 885, 1936 Ga. App. LEXIS 788

• Court: Court of Appeals of Georgia
• Decided: November 21, 1936
• Docket: 25478
• Status: Published

Opinions

Broyles, C. J.

Francis M. Watson Jr.> by next friend, brought suit against Mrs. May Inman Gray, W. T. Robinson, doing business as Subway Parking Company, and the executors of the estate of D. Greenfield. Yerdict and judgment for the plaintiff were rendered. Mrs. Gray filed a motion for new trial, which was overruled; and on this judgment she assigns error. While this decision deals with the case as it pertains to Mrs. Gray, it is well to state that all of the defendants came to this court by separate bills of exceptions; and a decision in the Greenfield case has been rendered, to which reference is hereinafter made.

The facts as disclosed by the evidence are that the defendant Mrs. Gray owned a lot at the northwest corner of Forsyth and Hunter Streets in Atlanta; that at a previous time she had filled in this lot and made it level with the top of a rock wall on the north side of her lot; that she rented this lot to defendant Robinson who used it as a public parking lot; that immediately north of this rock wall on the edge of the parking lot was a pit or ditch approximately ten feet deep and two and one half feet wide, which was located (except for a few slight variations in the irregular rock wall) on the property of the Greenfield estate; that on the north side of the pit or ditch was a brick building belonging to the Greenfield estate, the pit or ditch being between the parking lot and the brick building; that the plaintiff, a minor, twelve years of age, went with his mother and a Miss King to this parking lot and, for a consideration, parked their car there; that they parked al the place where they were directed to parle Toy the person in charge; that it was dark when they came back to get the car; that the man who ran the parking lot came with a flashlight to help them find the car, but did not go all the way with them, as they located the front of their car by the headlights of other cars; that the light from other cars “was only now and then as cars would go around;” that as the mother of the plaintiff was opening the door next to the driver’s seat, Miss King and the plaintiff were standing there, and the plaintiff walked around .behind the car to get in on the other side, and in so doing fell into the ten-foot pit or ditch which had rough rock sides and a concrete or rock bottom, thereby sustaining certain injuries for which he sued. The evidence showed that the place where plaintiff’s mother was directed to put the car was near the pit; that there was no red light or other warning to notify the patrons of the public parking lot that the pit was there; that there was no guard-rail or other obstruction to keep people from stepping into the pit in the dark, though a guard-rail has been put there since; and that the top of the rock wall, which was the top of the pit on that side, was level with the rest of the parking lot. It is undisputed that the pit and the parking lot along the side of the pit were unlighted and dark; and there was evidence that the entire parking lot was unlighted. The fact that the operator of the parking lot was using a flashlight to locate cars would indicate that the lot was not lighted; and Miss King testified: “There were not any lights in the parking lot at all that I remember.”

The plaintiff in error contends that the child was negligent in walking around the car to get in on the other side, and in walking behind the car. In the absence of notice of danger, there is no negligence in walking around an automobile in order to get in on the other side. This is done practically every minute of the day throughout the civilized world. Neither is there any negligence in going behind the car rather than in front of it. On the contrary, it is ordinarily more prudent to walk behind a car than to walk in front of it; particularly so if some‘one is in the act of opening the door next to the driver’s seat, preparatory to getting in, ás in the instant case. It is a matter of common knowledge that numerous accidents result from walking in front of an automobile about to be started. The evidence shows that the boy had no notice of, and -knew nothing about, the pit to the rear of the car, and the law does not require him to anticipate this unusual condition. He had a right to assume, in the absence of notice or knowledge to the contrary, that the public parking lot was free from pitfalls or other instrumentalities of danger. The plaintiff was in no way responsible for the pit, or the ground around the pit not being lighted; nor was he in any way to blame for a guardrail not being there to prevent people from falling into the pit or ditch. This was a public parking place used by the public, and the plaintiff was an invitee for hire, the mother having paid a consideration for the privilege of parking there, and having parked at the place to which she was directed by the person in charge. The proved conduct of the plaintiff would not have been negligent even had he been an adult; and being a minor, he could be held only to that degree of diligence which a child twelve years of age should exercise; and certainly a child of his years would not be required to anticipate that the parking place suddenly dropped off into a ten-foot pitfall. The plaintiff, having no notice or warning of the pit, was not negligent in walking around behind the car to get in on the other side; and he being an invitee on a public parking lot, and his mother having paid a consideration for parking, and having parked where she was directed to park by the person in charge of the parking lot, and the defendant, Mrs. Gray, being the one who filled up the lot level with the wall, thus creating the dangerous instrumentality, and having maintained it thus without guard-rails or lights to prevent the patrons of the lot from falling into the pit or ditch, the defendant is liable under the Code, § 105-401, which declares: “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 persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.”

In Greenfield v. Watson, 54 Ga. App. 9 (187 S. E. 183), the executors of the Greenfield estate being codefendants with Mrs. Gray and Mr. Robinson in the trial of this case, the decision of this court in favor of the Greenfields did not hold or intimate that the plaintiff was in any way negligent, or that Mrs. Gray was not negligent; but, on the contrary, it was strongly indicated that Mrs. Gray was negligent and liable for the' plaintiff’s injuries. That decision was based on three things: (1) That the excavation on the Greenfield property was not in close proximity to a street or sidewalk. (2) “The plaintiff was neither their express nor implied invitee.” (3) “It appears that the depression was not created by the defendants [executors of the Greenfield estate], but by the act of the owner of the parking lot in filling in and raising his lot.” (Italics ours.) In the opinion in that case the court said that there was no liability on the Greenfields “where this depression on the lot of the defendant landowners [executors of the Greenfield estate] did not result from any act by them, but was created solely by the act of the owner of the adjoining parking lot (italics ours) in filling in with dirt and raising the level of the parking lot to even it with the top of the wall; where the defendant landowners [executors of the Greenfield estate] neither owned nor maintained any part of the wall from which the plaintiff fell, but merely by written agreement permitted the parking-lot owner to construct on the lot of the defendants a cement brace to prevent the wall from toppling or leaning over on the lot of the defendants, with a provision that no right or easement would ever be claimed by reason of such permission.” In Williamson v. Southern Railway, 42 Ga. App. 9 (155 S. E. 113), cited in the Greenfield case, the plaintiff was not even in a public place when injured, but was on a private driveway; and the court held that “under the facts and circumstances set forth in the petition, such as might reasonably have misled the plaintiff into a belief that the private paved driveway was but a continuation of the public street, there was what amounted to an implied invitation on the part of the defendant to enter upon its premises; and such being the case, it was incumbent upon the defendant to use reasonable and ordinary care in keeping the premises and approaches safe.” “The facts and circumstances set forth in the petition” showed that the defendant was negligent “in constructing and maintaining the driveway or roadway adjoining and as a continuation of the street, without placing railing or a barricade at the end thereof, and not giving notice of such condition by placing lights or other warning signals, and in maintaining such an alleged dangerous condition without giving notice or warning of the abrupt ending of the driveway.” "(Italics ours.)

Ground 1 of the amendment to the motion for new trial alleges that the court erred in failing to give in charge to the jury a form of verdict for the defendant, and for all ot the defendants. The court charged: “If you should find that either of these defendants was not negligent, . . then you would find a verdict then and there for such defendant or defendants. . . If you find that the plaintiff has not carried the burden of proof as to negligence, in the manner that I have described, against any of the defendants, then you would stop right there and write a verdict in favor of all the defendants. . . If you should find in favor of one defendant and against the others, you should name those defendants against whom you do find, and then you would say ‘and we find in favor of’ (naming the other defendant against whom you do not find), if you do find in favor of one or more. . . The'form of your verdict would be, ‘We, the jury, find in favor of’ (naming the defendant or defendants in whose favor you find).” Under the charge as given, the failure of the court to give the form, “We, the jury, find in favor of all the defendants,” was not harmful to the defendants. Neither was thé charge in reference to forms of verdicts an expression of opinion that the plaintiff should recover. Ground 2 complains that the court failed properly to instruct the jury in reference to the plaintiff’s negligence, and his failure to exercise ordinary care. The court clearly instructed the jury, not only that the burden was on the plaintiff to prove any negligence of the defendants, but also that if they found the defendants or any of them negligent, the plaintiff must have been in the exercise of ordinary care to protect himself from such negligence; and if by the exercise of ordinary care he could have avoided the consequences of defendants’ negligence, if any, he could not recover. The charge as a whole was fair. “‘A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole it may be' perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united.’” Harrison v. Hester, 160 Ga. 865 (7, 8) (129 S. E. 528). The cases cited by counsel for the plaintiff in error are differentiated by their facts from the instant case. In Bridger v. Gresham, 111 Ga. 814 (35 S. E. 677), the plaintiff himself closed the door of a lighted room, which shut off any light from a back veranda which was not lighted and from which he fell. Moreover, the plaintiff went to the office of the defendant’s hotel to sell berries for his own benefit, while in the instant case the plaintiff was an invitee at a public parking lot and paid a consideration for parking there. The grounds of the motion for new trial show no cause for reversal of the judgment. The evidence amply authorized the verdict, and the court did not err in overruling the motion.

Judgment affirmed.

MacIntyre and Guerry JJ., concur.