Summary
In Carmichael v. Timothy, 104 Ga. App. 16, 18 (1), 120 S.E.2d 814 (1961), we simply relied on McHugh and McMullan as well as another pre- Robinson case, Ely v. Barbizon Towers, 101 Ga. App. 872, 115 S.E.2d 616 (1960), to hold that "[s]ince it has been held that the existence of dividers in parking lots is not negligence in daylight, it would be ridiculous to hold it to be negligence to have them present at night."
Summary of this case from Brixmor New Chastain Corners SC, LLC v. JamesOpinion
38801.
DECIDED JUNE 23, 1961.
Action for damages. Fulton Superior Court. Before Judge Moore.
Powell, Goldstein, Fraser Murphy, Frank Love, Robert E. Call, for plaintiff in error.
N. Forest Montet, contra.
The use of a six-inch log to separate parking spaces in a parking lot is not negligence.
DECIDE JUNE 23, 1961.
The plaintiff brought this action against the defendant for injuries sustained when the plaintiff descended from an automobile in a parking lot owned by a third party but rented by the defendant for the purpose of allowing patrons of his business to part. The petition alleged that: The plaintiff entered the parking lot at approximately 11:30 p. m., as a passenger in an automobile; that there was one street light in front of the parking lot, the parking lot extending from the street for a distance of approximately 175 feet, and that there was no other illumination in the parking lot; that the parking was almost full; that the car in which the plaintiff was riding entered a parking space near the great of the parking lot, approximately 75 feet from the street light between who other vehicles and immediately behind other vehicles; that the sole street light caused shadows to be case about the surface of the parking area where the vehicle in which the plaintiff was a passenger was parked; that the surface of the parking lot was covered by a black asphalt-type substance; that there existed in the parking lot between the vehicle in which the plaintiff a log approximately six inches in diameter which had become very dark in color from the effects of age and having been creosoted, and that its presence was not known to the plaintiff but well known to the defendant; that the dark surface of the parking lot, the dark color of the log, and the shadows case over the surface of the parking area all combined together to create an illusion and cause the surface of the parking area to appear to be flat and clear of any objects, so as to cause a person such as the plaintiff, unacquainted with the parking lot, to believe the parking area flat and clear of any objects, that the most direct and practical route to the defendant's business from the place where the vehicle in which the plaintiff was parked was to talk past the front end of the vehicle and cross the parking lot; that the plaintiff did so, and after taking a few steps, stumbled over the log and fell, breaking her left forearm; that the plaintiff was an invitee and was in the exercise of ordinary care; and that the defendants were negligent in the following particulars: "(a) In knowingly allowing a dark object, to wit a log, placed upon a dark object, to wit an asphalt parking area, to remain in an area at night known by both defendants to be transgressed by the public; and (b) In failing to give any means or warning as to the existence and presence of said log; and (c) In failing to illuminate said log; and (d) In failing to paint said log white; and (e) In failing to cover said log with any luminous substance; and (f) In providing an insufficiently lighted parking area; and (g) In failing to place a light in the rear of said parking area."
The defendant filed general and special demurrers, to the overruling of which "the defendant excepted. The case came on for trial and resulted in a verdict and judgment for the plaintiff. The defendant filed a motion for new trial and made a motion for judgment notwithstanding the verdict. After hearing, the court overruled the defendant's motion for new trial as amended, and the defendant's motion for judgment notwithstanding the verdict, to which rulings exceptions were taken.
The first question to be determined is whether the trial court improperly overruled the defendant's general demurrer, for if that ruling was error, the other proceedings were nugatory and the errors assigned as to them need not be reviewed.
1. With modification, the doctrine that negligence of the plaintiff contributing to his injuries produced by the combined negligence of the plaintiff and defendant will bar the plaintiff from recovery is generally recognized throughout the United States. Prosser, Law of Torts, m 2 Ed. § 51. While it has been criticized (and no one theory can ever explain the doctrine of contributory negligence), at lease one justification for the view may be found in the idea that the plaintiff should not be permitted to recover for injuries which his own misconduct has assisted in producing, nor should he be permitted to complain where he has been guilty of the same type of misconduct with which he charges the defendant.
According to the allegations of the petition, it is clearly shown that the log over which the plaintiff fell was used as an aid in parking vehicles in the parking lot, and that the plaintiff fell over it when walking while she could not see it. Several cases involving similar situations where plaintiffs have fallen over parking lot dividers have been before this court recently. In Ely v. Barbizon Towers, Inc., 101 Ga. App. 872 ( 115 S.E.2d 616), this court held that under the allegations of the petition the presence of 4X4 timbers placed in such a way as to act as "stops" for automobiles in a parking area did not create an unreasonable risk of harm to the plaintiff. In McHugh v. Trust Co. of Ga., 102 Ga. App. 412 ( 116 S.E.2d 512), the plaintiff fell over a "cement separator" in the parking lot of the defendant not show a risk of unreasonable manager or that the defendant could have reasonably foreseen danger to an invitee on the property; that dividers separating lanes of traffic or setting apart parking spaces or property boundaries or parking lots can be anticipated by persons traversing a parking lot; and that the maintenance of these structures does not constitute negligence. In both the Ely and the McHugh cases, the injuries sued upon occurred in the daylight hours. Since it has been held that the existence of dividers in parking lots is not negligence in daylight, it would be ridiculous to hold it to be negligence to have them present at night. It follows that there is a duty on the part of parking lot users to anticipate the presence of parking dividers, day or night. See also McMullen v. Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420).
Under the authority of these cases cited, the use of a log divider of the type described in the petition would not be negligence. For this reason, the general demurrer of the defendant should have been sustained.
Judgment reversed. Felton, C.J., and Hall, J., concur.