Opinion
33119.
DECIDED JULY 7, 1950.
Attachment; from Fulton Superior Court — Judge Wood. April 4, 1950.
Frank A. Bowers, for plaintiff.
Nat C. Spence, for defendant.
The declaration did not show on its face that the plaintiff was barred from recovery by his own negligence and therefore, the declaration stating a good cause of action, it was error for the court to sustain a general demurrer thereto and to dismiss the action.
DECIDED JULY 7, 1950.
Tom Grant filed a declaration in attachment against Mrs. Lee Smart alleging in substance: that about August, 1947, the plaintiff rented from the defendant a certain house in the City of Atlanta; that commencing in the early part of 1948 the plaintiff and his wife noticed that the wood of and about the said front porch was beginning to rot and deteriorate, as were the steps from the porch to the ground; that notice of such condition had been given and request for repairs had been made to the defendant; that following notices to the defendant she did nothing towards making necessary repairs to said porch and steps and made no inspection of the same to determine the true condition thereof; that in December, 1948, the plaintiff spent $8 in replacing certain portions of the steps to render them more nearly safe for use; that on February 19, 1949, the plaintiff was standing on said porch at the southwest corner thereof talking to a friend, Andrew Ponder; that the upright wooden post at said corner then appeared to be safe and secure upon casual inspection and the plaintiff had no knowledge to the contrary, and the plaintiff leaned slightly against the same and as he did so, said post, due to the rotten condition of the post at its base, broke loose from the floor of the porch and swung out suddenly, causing the plaintiff to suddenly lose his balance and throwing him violently from the porch a distance of about 20 feet to the ground, the plaintiff striking an iron water meter as he landed on the ground; that by reason thereof the plaintiff was injured in enumerated particulars. The court sustained a general demurrer to the declaration and the plaintiff excepts.
The defendant in error contends that the plaintiff is precluded from recovery because he used the porch with knowledge of its dangerous and unsafe condition as evidenced by his allegation that "commencing in the early part of 1948 the plaintiff and his wife noticed that the wood of and about the said front porch was beginning to rot and deteriorate. ." This allegation is explained by the additional allegation that the post which swung out from the porch causing the plaintiff's fall upon casual inspection appeared to be safe and secure. These are not inconsistent allegations which must be construed against the plaintiff. The latter is merely explanatory of the former. While it is true that when rented premises become out of repair it is the duty of the tenant to abstain from using any part of the premises which would be attended with danger, it is equally true that even after notice to the landlord of the state of disrepair of the premises the tenant has a right to use those parts of the premises which are apparently in good condition. Stack v. Harris, 111 Ga. 149 ( 36 S.E. 615); Shaddix v. Eberhart, 55 Ga. App. 498 ( 190 S.E. 408). If the defect could have reasonably been discovered by the defendant by the use of ordinary care in the examination of defects of which she had notice, the plaintiff may recover if all other legal requirements are met. McGee v. Hardacre, 27 Ga. App. 106 (3) ( 107 S.E. 563); Gledhill v. Harvey, 55 Ga. App. 322 ( 190 S.E. 61). Except in clear and indisputable cases questions of negligence, proximate cause and contributory negligence are questions for a jury. Larkin v. Andrews, 27 Ga. App. 685 ( 109 S.E. 518); Southern Ry. Co. v. Slaton, 41 Ga. App. 759, 760 (3) ( 154 S.E. 718). This case does not come within the exception. A jury may be authorized to find from the evidence that the plaintiff did not exercise ordinary care under the circumstances and that this was the proximate cause of his injuries, but such does not appear on the face of the declaration and the court cannot as a matter of law resolve this question on the pleadings.
The declaration stated a good cause of action and the court erred in sustaining the general demurrer thereto and in dismissing the action.
Judgment reversed. Sutton, C.J., and Worrill, J., concur.