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DANEKER v. MEGRUE.
42160.
Action for damages. Muscogee Superior Court. Before Judge Land.
HALL, Judge.
The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances. Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.
The plaintiff sued for damages for personal injuries, alleging the following facts: The plaintiff was an invitee at the residence of the defendant. Some ten to fifteen minutes prior to plaintiff's fall defendant had gone to plaintiff's house and borrowed a six-foot stepladder and asked the plaintiff to assist him in taking down a television antenna from the roof of defendant's house. When plaintiff appeared at defendant's house the stepladder had been placed by defendant at approximately a thirty-degree angle between the ladder and the house, with its right edges on the grass side and the left edges on plain dirt. The defendant climbed the ladder and was taking the antenna loose and when plaintiff arrived defendant handed the antenna to plaintiff who was standing on the top of the ladder. As plaintiff took hold of the antenna the ladder sank on the left side into dirt three or four inches throwing plaintiff to the ground and causing certain injuries. Prior to this date defendant had dug up dirt around his house. Two to three weeks prior to this date defendant had painted the eaves of his house, using the same stepladder, and during this time the ladder would sink into the soft earth around his house and he would have to put boards underneath it to keep the ladder from sinking into the dirt. The defendant knew the dirt under the left side of the ladder was hard on top, but underneath the crust created by the rain was soft and the ladder would go into the earth when sufficient weight was put on it. The defendant knew this because it had previously happened with him just two weeks prior to that time. The defendant's negligence was alleged to be in not warning the plaintiff of the dangerous condition that existed, in not anchoring the end of the ladder in solid foundation, and in placing the ladder partially on firm foundation and partially on soft dirt, which permitted the ladder to tip when weight or pressure was exerted on one half of it.
The defendant enumerates error on the judgment of the trial court overruling the general demurrer to the petition.
That petition shows no more than that the defendant had constructive knowledge that the dirt upon which he placed one side of the ladder was soft. The allegation that the defendant knew this because the ladder had gone into the earth when he used it two weeks before the plaintiff fell, and the allegation that the defendant had himself successfully climbed the ladder just before the plaintiff do not support a conclusion that the defendant had actual knowledge of the condition at that time. See Etheridge Motors, Inc. v. Haynie, 103 Ga. App. 676, 679 (120 SE2d 317); 71 CJS 66, Pleading, 26.
While the defendant owed a duty to exercise ordinary care for the safety of his invitee, this duty imposed a liability only for injuries resulting from such defects as a reasonable inspection would disclose. Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507, 515 (116 SE 57).
The petition shows that the defendant took the precaution of climbing the ladder prior to permitting the plaintiff to climb it. In view of this allegation we do not see how any jury would be able to find that the defendant did not make a reasonable inspection or that he should have foreseen that the ground upon which the ladder was placed would not support the plaintiff. The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances. "Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness." 2 Harper & James, The Law of Torts 929, 16.9. Accord Prosser on Torts (3rd Ed.) 149, 31; 38 AmJur 669, 679, 24, 32. As Judge Cardozo said in Greene v. Sibley, Lindsay & Curr Co., 257 N. Y. 190, 192 (177 NE 416, 417), "Extraordinary prevision might have whispered to him at the moment that the warning would be helpful. What the law exacted of him however, was only the ordinary prevision to be looked for in a busy world." We hold that the defendant, having tested the ladder by climbing it himself, did not expose the plaintiff to a foreseeable unreasonable probability of harm.
The trial court erred in overruling the general demurrer to the petition.
Judgment reversed. Nichols, P. J., and Deen, J., concur.
L. B. Kent, for appellee.
Hatcher, Stubbs, Land & Rothschild, William B. Hardegree, for appellant.
ARGUED JULY 6, 1966 -- DECIDED SEPTEMBER 6, 1966 -- REHEARING DENIED SEPTEMBER 21, 1966.
Friday May 22 20:03 EDT


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