Opinion
37805.
DECIDED SEPTEMBER 17, 1959.
Action for damages. Fulton Superior Court. Before Judge Alverson. May 17, 1959.
T. J. Long, Ben Weinberg, Jr., for plaintiff in error.
Schwall Heuett, Emory Schwall, contra.
Recognizing the many facets reflected in this record, this case is obviously one to be determined by a jury. Here, as always, the question of whose negligence and what negligence is to be determined on the basis of evidence developed during a trial.
DECIDED SEPTEMBER 17, 1959.
Clyde A. Tallon, Jr., filed a petition against Sylvan Heights Apartments, Inc., seeking damages for injuries allegedly caused by negligence on the part of the defendant.
The petition alleges that the plaintiff was a tenant in an apartment of the defendant; that as a tenant he had a right to use the halls, grounds, and other facilities provided by and under the custody of, the defendant; that located on the grounds adjacent and being a part of the apartment building, there was a garbage can buried, the top of which was approximately 2 inches above the surface of the ground; that the plaintiff stepped on the top of a garbage can which was approximately level with the top of the grass growing on the adjacent ground; that the lid of the can had rusted and deteriorated so that it was no longer fastened to the hinges of the can, but was "sitting loosely on the edge of the can"; that such alleged defect was not apparent to the plaintiff; that he fell into the can, feet first, and without warning; that the area was not sufficiently lighted, resulting in the plaintiff being unable to see the garbage can; that he had never had occasion to deposit garbage in any of the garbage cans prior to the night of the injury; that he had previously complained to the resident manager of the apartment building of the unsanitary condition of the can; that the defendant had knowledge of the condition of the cans, or in the exercise of ordinary care should have known thereof; that the conditions prevailing in and around the garbage can constituted a hazard, rendering the area unsafe for the plaintiff and other tenants. Acts of negligence were alleged as to the defendant. Injuries and damage to the plaintiff were set out, allegedly due to the defendant's negligence. He asked damages of $15,000 for pain and suffering, $85 medical expense, $1,500 loss of earnings and special damages for future loss of earnings in the amount of $15,000.
The defendant demurred generally to the petition and demurred specially to that portion which referred to the placing of the garbage pit immediately adjacent to the concrete walkaway and concrete areaway as amounting to a pitfall or man trap; and also demurred specially to that portion which alleged that the defendant allowed the garbage can lid to remain on the can in such a position that immediately upon stepping on said can lid the plaintiff fell without any warning into said garbage pit. Each of the demurrers goes to the allegation that each is insufficient in law and fails to state a cause of action against the defendant.
The trial judge overruled the general and special demurrers, and it is on this ruling that the case is before us for review.
The petition is silent as to how long the tenancy had existed. It is true that it must be assumed that the tenancy had existed for a period long enough for the plaintiff, as an ordinarily prudent and intelligent person, to have acquainted himself with the physical surroundings of the apartment. See Brim v. Healey Real Estate c. Co., 56 Ga. App. 483 ( 193 S.E. 84). Temporary factors could conceivably occur to make such knowledge of no value to the plaintiff, and likewise temporary factors could occur which might not be, or could not be, within the knowledge of the landlord. In Rothberg v. Bradley, 85 Ga. App. 477, 481 ( 69 S.E.2d 293) this court held: "Whether or not the owner of the premises is guilty of negligence and whether or not such negligence was the proximate cause of the death of an invitee thereon and whether or not the invitee himself was guilty of contributory negligence, are all questions which, under the law prevailing in this State, except in plain and indisputable cases, must be submitted to a jury, and are not questions of law for the court's determination. So, it is generally a question for the jury to determine whether or not the owner of premises has exercised proper care and diligence in keeping the premises safe for those invited thereon."
Construing the petition most strongly against the pleader, as must be done on general demurrer, there appears to be sufficient pleadings to be good against general demurrer. Nor are the special demurrers meritorious.
The court did not err in overruling the general and special demurrers to the petition as amended.
Judgment affirmed. Townsend and Carlisle, JJ., concur.