Summary
In McClure v. Union Lumber Co., 89 Ga. App. 424 (79 S.E.2d 412), the plaintiff parked his truck and loosened its load of steel beams; the beams commenced to slide over on him and when he jumped back out of the way he fell over some concrete blocks which the defendant had piled in the yard.
Summary of this case from Thomson Pipe Line Co., Inc. v. DavisOpinion
34916, 34917.
DECIDED DECEMBER 2, 1953. REHEARING DENIED DECEMBER 17, 1953.
Action for damages. Before Judge Moore. Fulton Superior Court. September 2, 1953.
R. Beverly Irwin, Osgood O. Williams, Marshall, Greene, Baird, Neely DeRieux, for plaintiff in error.
Gambrell, Harlan, Barwick, Russell Smith, James C. Hill, A. S. Grove, contra.
The petition did not allege a cause of action against the defendant company. Such petition set out facts showing that the defendant was not liable for the alleged injury to the plaintiff.
DECIDED DECEMBER 2, 1953 — REHEARING DENIED DECEMBER 17, 1953.
Herman S. McClure (hereinafter called the plaintiff) on October 22, 1952, filed in Fulton Superior Court a petition against Union Lumber Company, a corporation (hereinafter called the defendant), seeking to recover damages on account of certain personal injuries claimed to have been sustained as a result of the alleged negligence of the defendant. Substantially the following facts appear from the petition as amended: On October 23, 1950, the plaintiff, an employee of the Bremen Steel Company, delivered a load of "steel beams" to the defendant. The plaintiff was driving a large tractor and trailer "G. M. C. mobile tractor" for said steel company. He arrived with the load of steel, on the premises of the defendant around 3 p. m. on said date, and made inquiry of the "agents and servants" of the defendant "where he was to unload said steel." After the plaintiff entered the defendant's premises, "he inquired of an employee who was acting within the scope of his employment, where the steel should be unloaded and placed, and . . . this employee inquired of a foreman of the defendant . . . who was acting within the scope of his employment, where the steel should be placed, and in concert he was shown and directed to place the steel near a pile of concrete blocks which were stacked approximately five . . . or six . . . feet high in an `L' shape close to and adjacent to where the truck had to be placed in order to put the steel where he was directed to put the same"; and this placed the plaintiff in the status of a business invitee. The plaintiff "removed the chains from the truck after placing the truck in the position shown, which was slightly on an incline, rough with holes, gravel, and large stones, which caused the truck to tilt slightly in the direction of the right-hand side of the truck." While the plaintiff was removing these chains and standards from the truck in order for the steel to be unloaded therefrom, "unknown to your petitioner, one of the concrete blocks rolled off the stack of concrete blocks near" the plaintiff "and broke into some small pieces." After the plaintiff "removed the chains and [standards] stacks from his said truck . . . the steel started to fall and roll from the truck over and onto" him, and the plaintiff "attempted and started to run when he tripped, fell over, and stumbled on the concrete block which had fallen from the pile . . . closely adjacent to the truck, tripping [trapping] your petitioner in such a position that he was unable to extricate himself from between the truck and the pile of blocks," injuring the plaintiff. This was a latent defect known to the defendant, but not known to the plaintiff.
The following acts of negligence by the defendant are alleged to have been the direct and proximate cause of the plaintiff's injuries: (a) Placing the pile of rocks and blocks on its premises in such a position that one would likely roll off the pile and over the feet on any person on the defendant's premises at that place where the plaintiff "was directed to unload the steel." (b) Not warning the plaintiff that the blocks were piled there irregularly and were likely to roll off the pile over the feet of any person working in close proximity thereto. (c) Failing to warn the plaintiff that one or more of these blocks had rolled off the pile, "which was unknown to . . . petitioner after he began the process of unloading said steel at the place and under the direction of the defendant company." (d) Allowing the "place of unloading said steel to become cluttered with rocks and blocks" after the plaintiff began the unloading of the steel. (e) Failing to warn the plaintiff that the blocks and rocks had rolled off the pile "when they knew or should have known that said rocks and blocks were rolling off of said pile at said time and place." As a direct result of the above acts of negligence, the steel fell off and rolled onto the plaintiff, seriously and permanently injuring him. The plaintiff was free from all fault and was acting in the exercise of ordinary care for his own safety, and the proximate cause of all of his injuries and damage was the direct result of the specific acts of negligence above alleged.
The defendant demurred generally to the petition on the ground that it failed to set forth any cause of action. The defendant also demurred specially to various paragraphs of the petition as being vague and indefinite and as setting forth conclusions of the pleader.
The entire case is predicated upon whether or not the defendant is liable to the plaintiff truck driver because the plaintiff, in seeking to avoid the steel beams rolling from his truck, tripped on some pieces of concrete which had become loosened and had fallen from a pile of concrete blocks, located near where the plaintiff was in the process of unloading the steel from his truck.
We are well aware of that oft-used and repeated rule of the law that questions of negligence and diligence, what is negligence, whose negligence, contributory negligence, proximate cause, and the like, are generally not questions of law to be determined by the courts upon demurrer, but are questions to be decided by the jury under proper instructions from the trial judge, except in plain and unmistakable cases when such questions are to be solved by the courts on demurrer. See Central of Georgia Ry. Co. v. Leonard, 49 Ga. App. 689 (3), 699 (2) ( 176 S.E. 137); Brown v. Savannah Electric Co., 46 Ga. App. 393 ( 167 S.E. 773). Where, as here, the petition does not make a question of fact as to the foregoing, it is the duty of the trial judge to pass upon the alleged acts charged as negligence. It is to be kept in mind also that the proximate cause must be shown before an obviously negligent act of the defendant can charge him with liability for an injury; and where — conceding the defendant to have been negligent relative to the pieces of broken concrete on which the plaintiff tripped or stumbled as he sought to avoid the falling steel by running — this does not, under the plain and unmistakable allegations of the petition, constitute the proximate cause of the plaintiff's injuries, i. e., was not what caused the plaintiff to get hurt, the court will determine that the petition, based upon such a charge of negligence for which the defendant is not liable to the plaintiff, fails to set out any cause of action against the defendant, entitling the plaintiff to prevail.
In this connection it must be kept in mind that, while it is alleged that the place where the steel was directed to be unloaded was in an "L" shape, it does not appear how large the "L" space was, nor whether the truck could not have been driven on the opposite side of the place from that where the plaintiff was directed to unload the steel. The petition does not show that the steel could not have been unloaded from the other side of the truck at the place where the plaintiff was directed to unload the steel. The petition does not show that the truck in which the steel was loaded should have been tilted so that the steel would fall on the plaintiff.
It is true that, in cases like Coffer v. Bradshaw, 46 Ga. App. 143 (6, 7) ( 167 S.E. 119), "Where one enters the premises of another for purposes connected with the business of the owner, conducted on the premises, he is an invitee, and the owner of the premises is liable in damages to him for a failure to exercise ordinary care in keeping the premises safe. . . The duty to keep the premises safe for invitees extends to all portions of the premises which it is necessary for the invitee to use in the course of the business for which the invitation was extended, and at which his presence should therefore be reasonably anticipated, or to which he is allowed to go." Also in that case it is correctly ruled (at pp. 149, 150): "The duty to keep the premises safe for invitees applies to defects or conditions which are in the nature of hidden dangers, traps, and the like in that they are not known to the invitee and would not be observed by him in the exercise of ordinary care. . . An owner of buildings who knows, or in the exercise of reasonable care should know, of their dangerous and unsafe condition, and who invites others to enter upon the property owes to such invitees a duty to warn them of the danger, where the peril is hidden, latent or concealed, or the invitees are without knowledge thereof." If the owner of land knows that its condition is unsafe, he should give timely warning of such danger.
A person is not entitled to recover against another for an injury resulting from an act brought about as a result of a situation created by him and not the defendant, whereby he voluntarily placed himself in peril. See Briscoe v. Southern Ry. Co., 103 Ga. 224 ( 28 S.E. 638); State Const. Co. v. Johnson, 88 Ga. App. 651 ( 77 S.E.2d 240). The defendant did not create the condition of emergency which caused the plaintiff to run. The plaintiff did this. The proximate cause of the plaintiff's injuries was not the act of the defendant's servants and employees in showing the plaintiff this place for him to unload the steel beams from the truck. It appears from the petition that the plaintiff voluntarily placed his truck in this position; and, seeing that it was in a dangerous position, titled towards the side from which he endeavored to remove the steel beams, where it was apparent that the heavy steel beams would respond to the natural law of things heavier than air being drawn to the ground by the magnetic pull of the earth, he unfastened the chains and standards holding these beams on the truck and in place, and they began to roll off the truck and onto the plaintiff, the truck being plainly inclined and titled in that direction, and he, in an emergency caused by him or by his act, sought to escape by running and stumbling or tripping on the broken piece of concrete lying at his feet, of which he was not aware and had no knowledge, and which had rolled there unknown to him while he prepared to unload the truckload of steel. The foregoing facts plainly appearing from the plaintiff's rewritten petition, his petition as amended fails to set out a cause of action showing any liability on the part of the defendant and was subject to dismissal on general demurrer.
In McMullan v. Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420), it was said: "The only reasonable inference from the allegations of the petition is that the structure on the defendant's premises was such as could have been seen by the plaintiff in the exercise of ordinary care, and that the alleged injury was the result of the failure on the part of the plaintiff to exercise such degree of care for his own safety." On the question that the plaintiff ought to have seen the piece of concrete, see cases cited on page 198 of McMullan v. Kroger Co., supra.
The trial judge did not err in sustaining the general demurrer and in dismissing the petition.
Judgment affirmed on the direct bill of exceptions; cross-bill of exceptions dismissed. Townsend and Carlisle, JJ., concur.