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Damages; from Richmond Superior Court-- Judge G. C. Anderson. November 8, 1950.
Questions as to negligence and contributory negligence are, except in plain and indisputable cases, for the determination of the jury, and where, as here, it appears that the plaintiff, while looking in the display window of a department store, tripped over a large sign alleged to have been placed immediately under such window through the negligence of city employees, a jury question is presented as to whether or not the negligence of the plaintiff so preponderated as to preclude a recovery by tier.
Mrs. G. G. Glover filed suit in the Superior Court of Richmond County against the City Council of Augusta, a municipal corporation, for damages allegedly resulting from the negligence of the city in placing a parking sign of heavy iron, about 15 inches in diameter at the base, on the sidewalk of Ellis Street in Augusta, next to and parallel with the front of the Davison-Paxon store. The plaintiff alleged that the sign, so placed, constituted a dangerous trap, that she struck her foot against its base and was thrown violently upon it, and that as a result thereof she suffered certain described injuries. At the conclusion of the evidence the court, on motion, directed a verdict in favor of the defendant. The plaintiff filed a motion for a new trial on the general grounds, which was amended by one special ground complaining of the direction of the verdict, and this judgment is assigned as error.
(After stating the foregoing facts.) The special ground of the motion for new trial, assigning error on the direction of the verdict, will be considered in connection with the general grounds. It is well settled that the direction of a verdict is error if the evidence, together with all reasonable inferences and deductions there from, would have authorized a verdict for the opposite party. Miraglia v. Gose, 17 Ga. App. 639 (1) (87 S. E. 906); Code 110-104.
A municipality must exercise ordinary care and diligence to keep its streets and sidewalks in a reasonably safe condition for the use of pedestrians, and whether that has been done is usually a jury question. Seymour v. City of Elberton, 67 Ga. App. 426 (20 S. E. 2d, 767); Scearce v. Mayor &c. of Gainesville, 33 Ga. App. 411 (126 S. E. 883); City Council of Augusta v. Brassell, 48 Ga. App. 603 (173 S. E. 440). But, as stated in Wilson v. City of Atlanta, 63 Ga. 291, 294: "While, in respect to its streets, a city and a passenger upon them are alike bound to ordinary diligence, yet the diligence of the former has relation to keeping the streets in safe condition and repair, and that of the latter has relation to walking, riding, or driving along them in proper manner and with due caution. Ordinary diligence on the part of the city is that care which every prudent municipality takes to put its streets in safe order and keep them so; on the part of the passenger of average powers and capacity, it is that care which every prudent person takes to pass over them without sustaining injury or inflicting any. . . . There can be no doubt that while the city was bound to observe its own proper measure of diligence, yet, if it failed, and the plaintiff could nevertheless have avoided the consequences by using ordinary diligence on his part, and he likewise failed, he cannot recover." However, even though the negligence of the property owner, or the municipality, may be patent, the duty imposed by law upon all persons to exercise ordinary prudence to avoid the consequences of another's negligence does not arise until the negligence of such other is existing and is either apparent or the circumstances are such that ordinarily prudent persons would have reason to apprehend its existence, Wynne v. Southern Bell Telephone Co., 159 Ga. 623, 629 (126 S. E. 388). But, as stated in Holliday v. City of Athens, 10 Ga. App. 709, 713 (74 S. E. 67), "It was certainly incumbent on the plaintiff, as a matter of law, to use his eyesight for the purpose of discovering any obstruction which might have been placed in the street." Where the obstruction is patent, but there are reasons why the plaintiff did not see it--as for example a rope stretched across the street which was the same color as the street (Holliday v. City of Athens, supra); or darkness (Davis v. Buckeye Cotton Oil Co., 143 Ga. 436, 85 S. E. 335); or a slanting wire at foot level ( City of Athens v. Harris, 52 Ga. App. 56, 182 S. E. 202); or a small cart partially concealed in the late afternoon behind lard cans and pedestrians (Mason v. Frankel, 49 Ga. App. 146, 174 S. E. 546)--a jury question is presented. Also, although the obstacle is a patent defect and is actually seen by the plaintiff--such as a cannon, the barrel of which projected over the sidewalk ( City of Macon v. Stevens, 42 Ga. App. 419, 156 S. E. 718); or a meter box located in the sidewalk ( City of Rome v. Gordon, 53 Ga. App. 536, 186 S. E. 439)--this will not preclude recovery if it does not appear that by looking the pedestrian would have a full appreciation of the danger involved in using the sidewalk. Further, one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted as at other times. See City of Rome v. Phillips, 37 Ga. App. 299 (2) (139 S. E. 828). In the present case, the plaintiff testified that she alighted from her husband's automobile and walked directly to a display window to look at the objects therein, that she moved down, still looking at the window, in response to a remark of her husband as to its contents, and instantly fell over or upon the no-parking sign which had been placed directly under it.
840 (57 S. E. 2d, 680); Avary v. Anderson, 31 Ga. App. 402 (120 S. E. 683); Lane Drug Stores v. Story, 72 Ga. App. 886 (35 S. E. 2d, 472); Lebby v. Atlanta Realty Corp., 25 Ga. App. 369 (103 S. E. 433); Ford v. S. A. Lynch Corp., 79 Ga. App. 481 (54 S. E. 2d, 320); Dodson v. Southern Ry. Co., 55 Ga. App. 413 (190 S. E. 392). In none of these cases, however, does it appear that the defendant placed the obstacle, trap, or imperfection, as the case might be, in a place where, in the exercise of any care whatever, it should have known that the plaintiff's attention would normally be diverted by some other object. A large parking sign of the kind involved here would ordinarily be perfectly apparent to a person with normal faculties, but such an object placed directly under a window especially decorated for the purpose of attracting and holding the attention of passers-by, and in such a place that a person observing the contents of the window would necessarily trip against it unless an effort was made to locate and avoid hitting it, is far less likely to be actually noticed than in almost any other position on a street or sidewalk. If reasonable minds might differ upon the issue, it is a jury question as to whether conduct alleged to be negligent is in fact negligence. Georgia Power Co. v. Blum, 80 Ga. App. 618 (57 S. E. 2d, 18). By the same reasoning, it is a jury question as to whether the plaintiff used the diligence of an ordinarily prudent person to apprehend the existence of such negligence, if reasonable minds might differ on that issue. Under all the facts and circumstances of this case, the question as to whether the plaintiff did in fact fail to use that quantum of diligence which the law prescribes, so as to bar her recovery, or whether she was merely comparatively negligent, so as to reduce her recovery, is a question which should have been left to the determination of the jury.
The trial court erred in directing a verdict in favor of the defendant.
William P. Congdon, Congdon, Harper & Leonard, for defendant.
Peebles & Burnside, T. Reuben Burnside, for plaintiff.
Saturday May 23 05:24 EDT

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