Sinkovitz v. Peters Land Co.

64 S.E. 93, 5 Ga. App. 788, 1909 Ga. App. LEXIS 120
CourtCourt of Appeals of Georgia
DecidedMarch 16, 1909
Docket1311
StatusPublished
Cited by45 cases

This text of 64 S.E. 93 (Sinkovitz v. Peters Land Co.) 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.

Bluebook
Sinkovitz v. Peters Land Co., 64 S.E. 93, 5 Ga. App. 788, 1909 Ga. App. LEXIS 120 (Ga. Ct. App. 1909).

Opinion

Russell, J.

The plaintiff, by her next friend, sued the Peters Land Company for injuries received from glass falling from a window in the Peters building in the city of Atlanta, ■Georgia. In her petition she alleged, that as she was going up certain steps on Wall street, leading to Whitehall-street viaduct (the building in question abutting on Wall street), she was struck by pieces of window-pane falling from said Peters building, by reason of which a serious and painful injury resulted to her. The defendant was charged with negligence in three particulars: (1) that the window-pane had not been properly placed or set and secured in the sash; (2) the omission to use flat sprigs to reinforce the putty, and the inferior quality of the putty which was the support of the pane of glass in the absence of the sprigs; (3) that the window-pane itself was defective and not capable of sustaining the force of the usual winds to be expected in Atlanta, and especially those to be anticipated at this particular location. Ppon the trial the plaintiff offered to amend the 21st paragraph of the petition by an additional allegation of negligence, but ■this amendment was refused. Paragraph 21 in the original petition was as follows: “ Petitioner shows that said defendant was further negligent in that said window-pane was itself defective and not capable of sustaining the force of the usual windstorms and flurries of wind to be expected in Atlanta, and especially at the place where the Peters building is located.” In response to a ■demurrer, paragraph 21 was, by permission of the court, amended by amplifying its allegations as follows: "That said windowpane was defective in that the same was too thin and too brittle and did not have the tension required for its size; that on account of said window-pane being so thin and brittle, it was not capable ■of sustaining the force of the usual windstorms and flurries of wind to be expected in Atlanta and at this place. Atlanta is situated from 1,000 to 1,100 feet .above the sea level, upon a ridge, where it is exposed to the windstorms and flurries that are caused ■by the changes in climatic conditions; that strong flurries of wind, [790]*790moving with great force, are frequent in Atlanta, and that the same come up suddenly and unexpectedly, and require window-panes, of strong tension to sustain their force. The Peters building is located on one side of the railroad leading into the Union Depot, and is some eight stories high on the Wall-street side.” By the amendment which was rejected by the court it was proposed to add to the 21st paragraph of the petition as amended the. following: “ It is adjacent to the Kimball House, which is about eight stories high. The buildings located on the south side of the railroads form a solid bank, and are three or four stories high. The buildings on Peachtree street west thereof are respectively four and sixteen stories high. The height of these buildings with the open space between, forming banks, as it were, for the currents of air, force these currents of air about and around these buildings with great force. At the southwest corner of 'the Peters building, and on the west and south sides thereof, on account of the conditions herein set forth, windstorms and flurries, of wind are constantly to be expected, and the window-panes should be of such material, with sufficient thickness and toughness, to withstand the same. Petitioner shows that -the windowpane in the window complained of was not of such thickness and toughness, and that the failure to have said window-pane of such thickness and toughness required to withstand the usual windstorms and flurries of wind was negligence on the part of the defendant. The conditions herein described existed at the time that said injury occurred.”

1. We think that the court should have allowed the amendment which was offered by the plaintiff in error. The amendment was permissible either as a fit and full response to the demurrer, or as an additional ground of • negligence, setting up reasons why the defendant, in the exercise of ordinary care, should have provided these windows with glass of more than ordinary thickness and toughness. We can see no reason why the learned trial judge should have rejected this amendment. It was suggested in the argument that the height of the buildings surrounding the Peters building, which created the conditions as to the windstorms and flurries alleged by the plaintiff in the proposed amendment, had been changed and increased, since the original construction of the Peters building; and this being conceded to. [791]*791be the fact, the trial judge was of the opinion that it would not be the duty of the defendant company to change its building to meet the exigencies arising from conditions for which it was not responsible. The evidence in the record is meager upon this point, but granting that the erection of these buildings of fourteen stories in height near the Peters building increased the force of the air currents, and that the panes of glass in the defendant’s building, before the erection of near-by buildings of great height, were suitable and reasonably safe, we are nevertheless of the opinion that it was the duty of the defendant, as the owner of the building, to still keep its building and all of its appointments just as reasonably safe, if the conditions were so changed as to render what had previously been safe unsafe to passers by. As was held in Monahan v. National Realty Company, 4 Ga. App. 680 (62 S. E. 127), not only must the landlord construct his building so that it will not be unsafe, but it must be so maintained as not to occasion injury to another. Of course, if a change in the condition or in the quality of safety of a building is effected by the unlawful act of another, or by the creation of a nuisance by another, over whose acts the owner of the building hgs no control, the owner of the building would in neither ease be responsible for resultant injury; but there are many cases in which the lawful act of an adjacent landowner would call for the exercise of greater precaution for the safety of passers-by and others than might have been necessary in the original construction of a building. For instance, if an adjoining landowner should excavate a foundation, as he has a right to do, upon his own land, by reason of which the wall of another’s- building might be endangered, it would be necessary for the owner of the endangered building, in the exercise of due care for the safety of the public, to use efficient means to prevent his building from falling into the street. Ordinarily, artificial changes of conditions affecting a building which are legally effected must be regarded and acted upon by the owner of the building as much as the changes of condition which necessarily arise from the lapse of time and the ravages of the elements. To a lesser degree, but in the same sense that a defendant could not defend against a claim for an injury resulting from the fall of an old wall or from the fall of tiles or slate from a roof which may. originally have been perfectly [792]*792•constructed (if the fall of either was occasioned by long usage and decay), so the owner of a building which might, under its previous surroundings and conditions, have been reasonably safe as originally constructed, may, by a lawful change of conditions, have cast upon him the duty of changing his building so as to have it as reasonabty safe under the changed conditions as it was originally and before the necessity for change arose.

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Bluebook (online)
64 S.E. 93, 5 Ga. App. 788, 1909 Ga. App. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sinkovitz-v-peters-land-co-gactapp-1909.