Hicks v. Kaplan

134 S.E.2d 508, 108 Ga. App. 757, 1963 Ga. App. LEXIS 766

Opinion

Felton, Chief Judge.

The court erred in sustaining the general demurrer to the amended petition. The petition did not affirmatively show that the plaintiff was barred by her own neg ligence. Belk Gallant Co. v. McCrary, 88 Ga. App. 829 (78 SE2d 198); Building Investments, Inc. v. Jackson, 100 Ga. App. 827 (112 SE2d 359). The facts alleged in this case are similar to those alleged in Wicker v. Roberts, 91 Ga. App. 490 (86 SE2d 350) where the petition was held good as against a general demurrer. Roberts v. Wicker, 213 Ga. 352 (99 SE2d 84) is distinguishable from Wicker v. Roberts, supra, because the latter case was decided on the pleadings and the former on evidence. In this case actual and constructive knowledge of the dangerous condition is alleged. Contrary to defendant in error’s contention such knowledge is alleged as a fact on information and belief and the petition does not allege that the plaintiff “is informed and believes” that such knowledge existed. Pierce v. Rhodes, 208 Ga. 554, 556 (67 SE2d 771). The petition also alleges that the dangerous condition was not immediately apparent to the public. Scott v. Rich’s, Inc., 47 Ga. App. 548 (171 SE 201); Townley v. Rich’s, Inc., 84 Ga. App. 772, 776 (67 SE2d 403).

Judgment reversed.

Eberhardt and Russell, JJ., concur.