Ray v. Gallant-Belk Company of Elberton., 147 Ga. App. 580, 249 S.E.2d 635 (1978)
Linked as:
Summary
Judgment reversed and remanded for new trial. Webb and Banke, JJ., concur.
Summary
Judgment reversed and remanded for new trial. Webb and Banke, JJ., concur.
Text
Smith & Shiver, Thomas F. Hodges, III, Truett Smith, for appellant.
The appellant, a customer in appellee's store, fell while descending a flight of steps. Her action for personal injury resulted in a verdict for the defendant from which she appeals.
1. "Evidence is presumed to be admissible unless some objection is made which shows the contrary." Atlas Auto Fin. Co. v. Atkins,
2. The stairs in question had been built over forty years previously and did not meet the standards of the Southern Building Code, which the City of Elberton had adopted by ordinance. They were consequently legal as a nonconforming use. This being so, it was not error to reject the proffered city ordinance, and this is all the more true since the Building Code itself was allowed in evidence, along with testimony as to the manner in which the construction of this stairway varied from present day accepted practices. This would meet the standard of Tyson v. Shoemaker, 208 Ga. 28 (65 SE2d 163) (1951) where it was held that an illegally placed stop sign, while not relevant on the issue of negligence per se, might still be relevant to a standard of care failure to observe which would amount to common law negligence. Isom v. Schettino,
3. The verdict for the defendant effectively ended the deliberations of the jury, as it was a finding that the defendant had not been negligent in the construction and maintenance of the stairs. The recharge clarifying certain prior language of the court in regard to this rule was not error, and the verdict renders any error in the instructions on damages harmless. Reliford v. Central of Ga. R. Co.,
4. Complaint is made of the court's refusal of two requested charges: "An invitee is not bound to inspect the premises of another to discover hidden defects nor even to observe all apparent defects," and "When an invitee comes on premises of another she is not under a duty as a matter of law to discover apparent defects and she may rely upon the duty of the occupier to keep the premises safe." These instructions were given and approved in the cases of Misenhamer v. Pharr, 99 Ga. App. 163 (1) (107 SE2d 875) (1959) and Cooper v. Anderson, 96 Ga. App. 800, 810 (101 SE2d 770) (1957), and the rulings adhered to in Winn-Dixie Stores v. Hardy, 138 Ga. App. 342 (226 SE2d 142) (1976). We find nothing in the present case to take these instructions out of the rule there laid down. Their omission would certainly not be error in the absence of a request, but where the request is made, where its subject matter is pertinent and material, and where it is not substantially covered in the charge as given, the omission is error. We recognize that this is not true where the requested material is given in substance. Pollard v. State, 236 Ga. 587 (224 SE2d 420) (1976). However, we have been directed to no portion of the jury instructions bearing on the subject of these requests, for which reason Enumerations 5 and 6 require a reversal of this case.
Erwin, Epting, Gibson & McLeod, E. Davison Burch, for appellee.
1978
Sponsored links
This document cites
- Supreme Court of Georgia - POLLARD v. THE STATE., 236 Ga. 587, 224 S.E.2.d 420
- Supreme Court of Georgia - TYSON v. SHOEMAKER., 208 Ga. 28, 65 S.E.2.d 163 (1951)
- Georgia Court Of Appeals - Winn-Dixie Stores, Inc. Et Al. v. Hardy., 138 Ga. App. 342, 226 S.E.2d 142 (1976)
- Georgia Court Of Appeals - Misenhamer v. Pharr., 99 Ga. App. 163, 107 S.E.2d 875 (1959)
- Georgia Court Of Appeals - Cooper, by Next Friend v. Anderson Et Al., 96 Ga. App. 800, 101 S.E.2d 770 (1957)
See other documents that cite the same legislation
