Opinion
39246.
DECIDED FEBRUARY 27, 1962.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Hurt, Gaines, Baird, Peek Peabody, Joe C. Freeman, Jr., Sanford R. Karesh, for plaintiff in error.
Smith, Field, Ringel, Martin Carr, Palmer H. Ansley, contra.
1. "Questions of negligence, of contributory negligence, of cause and proximate cause, and of whose negligence or of what negligence constitutes the proximate cause of an injury are, except in plain, palpable and indisputable cases, solely for the jury. Montgomery v. Southern Ry. Co., 78 Ga. App. 370 (1d) ( 51 S.E.2d 66); Harvey v. Zell, 87 Ga. App. 280, 284 (1a) ( 73 S.E.2d 605)." Long Const. Co. v. Ryals, 102 Ga. App. 66 (1) ( 115 S.E.2d 726). In this connection, it has been held on consideration of whether a petition is subject to general demurrer that unless the allegations of the petition set up facts from which reasonable minds cannot differ as to the cause of the injury they are sufficient to carry the case to the jury. Bazemore v. MacDougald Const. Co., 85 Ga. App. 107, 110 ( 68 S.E.2d 163). It was not the purpose of the summary judgment law (Ga. L. 1959, p. 234, et seq.) to change these general rules with reference to submitting questions to the jury, and a summary judgment should be granted only if there is no genuine issue of fact as shown by the record before the court.
2. In the instant case, the plaintiff's deposition and the affidavit of her witness showed that the defendant was negligent in at least some of the ways charged in the petition. They further showed that the plaintiff, by reason of the fact that she had previously traversed the steps on which she fell, knew of their icy condition. However, under the foregoing rules of law, whether or not such knowledge constituted knowledge of the danger involved in using the steps, and whether in using the steps with such knowledge she was so negligent as to be barred of a recovery, were solely questions for the jury. Rothschild v. First Nat. Bank of Atlanta, 54 Ga. App. 486 ( 188 S.E. 301); Goldsmith v. Hazelwood, 93 Ga. App. 466 ( 92 S.E.2d 48); Netherland v. Pacific Employers Ins. Co., 101 Ga. App. 837 ( 115 S.E.2d 122). It follows that the trial judge erred in granting the defendant's motion for a summary judgment.
Judgment reversed. Eberhardt and Russell, JJ., concur.
DECIDED FEBRUARY 27, 1962.
Plaintiff's petition alleged that she was a tenant in one of the defendant's apartments; that on January 27, 1961, at approximately 8 p. m., she slipped on ice covering the steps leading from her apartment to a parking lot provided for her use by the defendant and sustained enumerated injuries. She alleged that the defendant had been notified by another tenant of the presence of the ice the day before and requested to remove the same, and that on the morning of January 27th an employee of the defendant undertook to remove the ice from the steps by using hot water, but because of the prevailing temperature, which ranged between 20 and 32 degrees Fahrenheit on that date, such attempt was ineffectual and merely added to the icy condition of the steps. She alleged that the defendant was negligent in the following particulars: "(A) In failing to properly maintain the steps and sidewalks to the plaintiff's apartment in a safe condition. (B) In placing through its servant and employee, hot water onto the sidewalks and steps which the plaintiff had to use and which hot water said agent and employee knew was immediately freezing and rendering said steps completely covered with ice and dangerous and unsafe. (C) In failing to correct the dangerous, hazardous and unsafe condition of the steps. (D) In failing to correct the dangerous, hazardous and unsafe condition created by said agent and employee resulting from the pouring of said hot water on said steps, when the defendant corporation, through its agent and employee, knew that the said steps were in a dangerous, hazardous and unsafe condition as a direct result of the acts of said agent and employee acting within the scope of his employment. (E) In failing to place a light at or on the steps so that they would be completely lighted during the hours of darkness. (F) In placing lights to the rear of the steps so that when said light struck said steps it caused a shadow to fall on portions of the steps which put the steps in semi-darkness and created an optical illusion. (G) In placing lights to the rear of the steps which caused a shadow to fall on portions of said steps when any person descended said steps. (H) In failing to remove said ice from said steps when the defendant corporation knew that it was practically impossible to see said ice. (I) In failing to properly maintain said steps and sidewalks adjoining the apartment of the plaintiff when the defendant corporation had, through its agents and employees, promised to do so and had actually undertaken to do so. (J) In failing to warn the plaintiff not to use the steps since they were in an unsafe condition. (K) In failing to put sand or salt or some abrasive material on the steps leading to the plaintiff's apartment."
After suit was filed the defendant took the plaintiff's deposition and then moved for a summary judgment in its favor. The plaintiff opposed this motion and, in support thereof, offered an affidavit of a proposed witness. The judge of the superior court, upon consideration of the deposition of the plaintiff and the affidavit of the witness, granted a summary judgment for the defendant. The exception here is to that judgment.