Opinion
36317.
DECIDED OCTOBER 23, 1956.
Tort; injuries sustained by tenant. Before Judge Pharr. Fulton Superior Court. May 22, 1956.
Hudson Hudson, for plaintiff in error.
Hurt, Gaines Baird, Moise, Post Gardner, contra.
The trial judge did not err in sustaining the general demurrers and dismissing the petition.
DECIDED OCTOBER 23, 1956.
Carolyn Huey filed an action in Fulton Superior Court against H. F. Nix and Draper Owens Company, a domestic corporation, for damages arising out of a fall by the plaintiff on a flight of steps leading to the sidewalk from the walkway of a building owned by the defendant Nix and managed by the defendant Draper Owens Company. The plaintiff's petition alleged in part as follows:
"That on October 1, 1954, petitioner rented from defendant Draper Owens Company, agent and employee of Nix, an apartment situated in said house at 921 Myrtle Street, and was occupying the same as tenant on October 17, 1954. That petitioner had been away from Atlanta ten days between the time she rented the apartment on October 1, 1954, and the time of the injuries described hereinafter, and had actually occupied said apartment only five days. Petitioner was not acquainted with the said premises and did not know the condition of the steps at the time of the injuries.
"That on October 17, 1954, petitioner started to church at about 10:45 a. m., and was in the act of descending the steps which connect the sidewalk of said house with the sidewalk which runs parallel with and along the side of Myrtle Street, and was stepping from the top step in said flight of steps (which top step is 12 inches wide) down and onto the second step in order descending, but her foot did not land on said second step firmly because of the fact that said second step is only nine inches wide, and for that reason did not accommodate her entire foot, but left a portion thereof hanging over the edge of said second step and extended over the third step, and this narrow step caused her to lose her balance and to fall backward suddenly and violently on said steps, and caused her back to strike the sharp edge of said steps, causing her severe pain in her back, hips and abdomen; by reason of said fall her back and the back portion of her hips struck the sharp edges of two of the steps as she went downward. . .
"That said steps are constructed of gray granite, and are all the same color. That the top step is 12 inches wide, the second step is 9 inches wide, the third step is 11 inches wide, and the bottom step is 10 3/4 inches wide. That there was no sign and nothing on or about said steps to indicate their unevenness in width or to warn your petitioner of the danger in using said steps in their condition. That there were no hand rails or guard rails about said steps on either side thereof, to enable petitioner to regain her balance or to protect her against said fall. Petitioner could not, by the exercise of ordinary diligence, discover the condition of said steps, nor did she know about said unevenness of said steps until after she had partially recovered from said injuries and actually measured said steps.
"That defendants were negligent in the following particulars: 1. In the construction of said steps of said material and in laying of said steps in the manner as herein stated. 2. In maintaining said steps in said condition. 3. In not notifying petitioner of the condition in which the steps were constructed and maintained. 4. In not placing and keeping about said steps hand rails on either side of them and guard rails to enable petitioner to regain and hold her balance at the time she was falling and to prevent said injuries. 5. In not placing a sign or notice where the same could be easily seen, so as to warn petitioner of the dangerous condition of said steps."
The defendants filed general demurrers to the petition which were sustained by the trial judge. The plaintiff excepted to this ruling and the case is here for review.
A landlord is under a legal duty to keep the rented premises in a safe condition and is therefore liable to a person who receives an injury while lawfully upon the premises and is in the exercise of ordinary care, if the injury is the result of a defect which is known to the landlord or in the exercise of reasonable diligence could have been known. Stack v. Harris, 111 Ga. 149 ( 36 S.E. 615); Ocean Steamship Co. v. Hamilton, 112 Ga. 901 ( 38 S.E. 204); Ross v. Jackson, 123 Ga. 657 ( 51 S.E. 578). Code § 105-603 provides: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." Therefore, if the plaintiff by the use of ordinary care could have seen the defect in the steps, she should not be allowed to recover in this action because she would not have been in the exercise of ordinary care for her own safety. Wilson v. City of Atlanta, 63 Ga. 291 (3); City Council of Augusta v. Brassell, 48 Ga. App. 603 ( 173 S.E. 440); White v. City of Manchester, 92 Ga. App. 642 (2) ( 89 S.E.2d 581). The question then arises whether the plaintiff should have seen the defect by the use of ordinary care.
There is no allegation in the petition from which it would be inferable that there was any reason for the plaintiff to have failed to see the different widths of the steps. The petition did allege that the steps were all the same color, but there was no allegation that this caused an optical illusion causing her to misjudge the width of the steps. The plaintiff having failed to allege any facts sufficient to explain and excuse her negligence in failing to observe the different widths of the steps, the petition shows on its face that the plaintiff was not in the exercise of ordinary care for her own safety.
The trial judge did not err in sustaining the general demurrers and dismissing the petition.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.