Opinion
39128.
DECIDED NOVEMBER 28, 1961. REHEARING DENIED DECEMBER 12, 1961.
Action for damages. Haralson Superior Court. Before Judge Foster.
E. B. Jones, Jr., Howe Murphy, Harold L. Murphy, for plaintiff in error.
Murphy Murphy, James R. Murphy, Thomas B. Murphy, contra.
Since the allegations of the petition did not show that the defendant neglected any duty which he owed to the plaintiff, the trial court properly sustained the general demurrer.
DECIDED NOVEMBER 28, 1961 — REHEARING DENIED DECEMBER 12, 1961.
W. L. Cook filed his petition in the Superior Court of Haralson County against J. W. Parrish to recover damages for injuries sustained by the plaintiff when he stepped into a hole in the pavement in a public parking area in the City of Bremen. The petition alleged as follows: "On or about November 14, 1959, at about 1:15 p. m. o'clock defendant was operating his 1952 Packard automobile west on Pacific Avenue in the City of Bremen; that when he reached the by-pass to U.S. Highway 27 located in front of Lamar's, a department store in said city, he turned north on said by-pass.
"A train was blocking the by-pass immediately ahead of defendant, and when he applied the brakes to his automobile it did not stop or slow down, and the defendant turned the automobile to the left across the southbound lane of traffic and into an automobile parking area which lies in a triangle between Pacific Avenue (U.S. Highway Number 78), U.S. Highway 27 (Alabama Avenue of Hamilton Avenue) and the by-pass on which he was proceeding.
"Said parking area is highly congested with automobiles at all times of the day and night and is situated in the center of the heaviest traveled streets of said city, hundreds of cars passing on each side of said parking area each day.
"Said parking area is covered with a macadamized (black top) surface, and is constructed so that automobiles may enter said parking area from any one of its three sides.
"A parking sign for buses was erected in the parking area on a 4 x 4 post extending down through the black top into the soil of a depth of about approximately twelve inches.
"At said time and place, defendant's automobile entered said parking area and with great violence and force pushed up said sign and proceeded on and crashed into a 1955 automobile owned by Roy Holland which was parked in said parking area.
"Defendant's automobile in knocking down the said sign caused a hole to be formed where the sign had been in the ground, the hole being approximately one foot deep and approximately sixteen inches across the top.
"Defendant knew he knocked down said sign, and knew of said hold he caused and that same was left remaining in the parking area, and of the constant changing use of said parking area by automobiles and pedestrians all hours of the day and night.
"Defendant erected no barriers or safeguards around said hole, nor placed any watchman or warnings of any kind of the condition in which the parking area was left, as a safeguard to pedestrians or motorists of the hazards and trap there existing.
"Defendant did not correct, repair, cover up or remedy said defective hole in said parking area, but left the same in the same identical condition in which he caused the same.
"Said hole constituted a defective, unsafe and dangerous condition to said passers-by lawfully using said parking area.
"At approximately 2:30 p. m. on said day, plaintiff parked his automobile headed in a southern direction, and the northern side of said triangle and went across Pacific Avenue to transact his business. Plaintiff had stopped in the parking area many times in the past and was thoroughly familiar with said area.
"Having transacted his business, plaintiff returned to his automobile, placed himself under the driver's seat and was about to leave when his attention was attracted by a Mr. Frank Miller, who was coming toward him from the direction of Pacific Avenue, talking and pointing in a westerly direction.
"At no time herein alleged did plaintiff observe the said hole in the parking area.
"Mr. Miller engaged plaintiff in a conversation in reference to the automobile of Roy Holland hit earlier by defendant and stated he wanted plaintiff to see it.
"Plaintiff got out of his car and started toward the wrecked automobile which was parked in the parking area approximately twenty feet west of plaintiff's car.
"As plaintiff was walking around in front of his automobile toward the wreck his attention was attracted by the conversation of Mr. Miller, and by plaintiff's lookout for his safety from cars that might be entering the busy parking area.
"The hole made by defendant was approximately six feet from plaintiff's car, he did not see same, and plaintiff's left foot went down into it suddenly, without warning, the hole causing him to fall and to be thrown with great force and violence onto the black top, plaintiff landing on his left knee cap, causing him to be severely injured as hereinafter described.
"That plaintiff was a resident of Bremen, Georgia and had on numerous occasions used said parking area for the parking of his automobile and for walking and had no knowledge of the creation of said hole, same having been created by the negligence of defendant, unknown to plaintiff."
It was alleged in paragraph 21 of the petition that the defendant was negligent "In failing to use ordinary care and caution in the operation of said 1952 Packard automobile at said time and place and thus have avoided colliding with said parking sign and the creation of said hole in the asphalt.
"In creating a sudden unsafe situation in the asphalt at said time and place.
"In failing to warn plaintiff of the defective, unsafe, and dangerous condition of said hole in said public parking area caused by knocking down said sign.
"In failing to correct, cover up, repair, remove or remedy said defective hole when such defective condition was known to this defendant, the same being in an area which was highly traveled by pedestrians and motorists.
"In leaving said parking area in a defective, unsafe and dangerous condition and in such condition that it constituted a danger and hazard to pedestrians lawfully using said area.
"In failing to anticipate that the public and your plaintiff in particular in lawfully using said parking area would be in danger of grievous bodily injury because of said hole.
"In failing to erect barriers, signs, or watchman, or other warnings, to warn plaintiff of the hazard and trap there created and existing.
"In failing to anticipate that pedestrians and plaintiff in particular walking in said parking area would have their attention diverted from the path of their walk by reason of automobiles coming in and out of said congested parking area.
"In knocking down said sign and thereby causing a condition to exist thereby causing the injuries and damages of which the plaintiff complains, the same being negligence as a matter of fact under all the circumstances existing at the said time and place.
"In operating said 1952 Packard automobile in such manner as to knock down said sign and thereby creating and causing an unsafe condition which caused and brought about the injuries and damages of which plaintiff herein complains, the same being negligence as a matter of fact under all the facts and circumstances existing at said time and place."
The defendant's demurrers, both general and special, were sustained by the trial court and the petition was dismissed. The exception is to that judgment.
While it is alleged in the petition that the defendant was negligent in striking the sign post, up-ending it, and thereby creating the alleged defective and dangerous condition, the instant cause of action against the defendant is predicated upon his failure to act either to eliminate the dangerous condition allegedly created by him or to give warning of its presence. Accordingly, the general demurrer presents the question as to whether the defendant, under the facts and circumstances in this case, was under any duty to act in the manner contended. If this defendant was under no such duty, then as a matter of law the petition could not set forth a cause of action against him since it is an elementary principle that the failure to act where there is no duty to do so will not give rise to rights in another. Atlanta Gas Light Co. v. Jennings, 86 Ga. App. 868 ( 72 S.E.2d 735).
"If one negligently creates a dangerous situation it may generally be said that it becomes his duty to do something about it so as to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights and in the exercise of ordinary care for their own safety may be injured thereby." Hardy v. Brooks, 103 Ga. App. 124, 126 ( 118 S.E.2d 492).
While the instant petition alleges that the defendant negligently created a defective, unsafe and dangerous condition to the lawful users of the public parking area, and that he should have reasonably foreseen that such lawful users of the public parking area would be subsequently injured thereby, the facts alleged are insufficient to support these conclusions.
There are no allegations that the hole, which was alleged to have been 16 inches wide and 12 inches deep, was camouflaged or concealed, wholly or partially, in any manner, or that it could not be readily seen by those who would subsequently be using the parking area. Nor were there alleged any special circumstances present which would have magnified the likelihood of danger of the condition created by the defendant. Accordingly, since this case is being considered on general demurrer, in the absence of such allegations it must be presumed that the alleged defect was visible and apparent and could have been observed by others who would be using the parking area.
Ordinary care, which is the test of the defendant's liability in a case such as this, simply requires the exercise of due care under the circumstances, which involves a degree of caution commensurate with the danger involved. Armor Gas Corp. v. Davis, 93 Ga. App. 563, 565 ( 92 S.E.2d 244). One is not liable for injury to another where his duty is that of ordinary care merely because of failure to exercise that degree of care which would have absolutely prevented injury. Richardson v. Pollard, 57 Ga. App. 777 ( 196 S.E. 199).
Under the alleged facts and circumstances of this case, it cannot be said that the condition created by the alleged negligence of the defendant was so dangerous as to be regarded as sufficient to charge the defendant in the exercise of ordinary diligence with knowledge of the probability of an injury being caused thereby unless he took some affirmative action to do something about it.
Accordingly, while it was the duty of the defendant to notify the proper authorities of the defect in the parking area (and it is not alleged in the petition that he failed to give such notice), there was no duty devolving upon him to barricade the area, station a watchman there or take other steps to give warning of the defective condition of the parking area, until those responsible could act, as contended by the plaintiff.
If follows, therefore, that the allegations in the instant petition did not show that the defendant neglected any duty which it owed to the plaintiff, and the trial court properly sustained the general demurrer thereto.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.