Opinion
43108, 43109.
SUBMITTED OCTOBER 5, 1967.
DECIDED OCTOBER 24, 1967.
Action for damages. Fulton Superior Court. Before Judge McKenzie.
Paul R. Koehler, for appellants.
Lokey Bowden, Glenn Frick, for appellee.
Where a person with full knowledge of the existence of newly excavated wet dirt piled along the edge of a ditch two feet wide and four feet deep, and without any emergency requiring a crossing, attempts to cross the ditch, such person voluntarily assumes all the usual risks incident to such an attempt, and no cause of action arises for damages resulting from slipping on the wet dirt and falling into the ditch. The petitions in the present cases fail to show a cause of action.
SUBMITTED OCTOBER 5, 1967 — DECIDED OCTOBER 24, 1967.
J. Bruce Miller and Juanita H. Miller, husband and wife, filed separate negligence actions in Fulton Superior Court against Nichols Contracting Company, Inc., based on a single incident involving the wife, who slipped on wet dirt excavated by the defendant in digging a ditch, and fell into another ditch. The husband seeks to recover for loss of consortium and medical expenses, and the wife seeks to recover for lost wages and pain and suffering.
The petitions are identical as to the alleged facts surrounding the incident and alleged negligence. On June 24, 1965, Mrs. Miller was employed at a location on Grandview Drive in Atlanta, a north-south street, just north of the intersection with East Paces Ferry Road, an east-west street. She drove to work in the morning and, as had been her custom for many months previously, parked her automobile on the west side of Grandview Drive just south of the intersection. While walking from her automobile to her place of work she noticed that the defendant's employees were digging a ditch on East Paces Ferry Road. When she left work about 5:30 that afternoon she noticed that the ditch, four feet wide and eight feet deep, extended from a point beyond her view to the west on East Paces Ferry Road entirely across the Grandview Drive intersection to a point eight feet east of the southeast corner of the intersection. The dirt from the excavation had been piled four feet high and two feet wide along the entire south edge of the ditch. At the southeast corner of the intersection and south of this ditch, separated from it by a space four feet wide, there was another ditch "which had existed for a long time," two feet wide and four feet deep. On the south edge of this ditch there was a retaining wall for a recessed parking lot located about five feet below ground level on the southeast corner of the intersection. This retaining wall was about two feet above ground level. It extended along East Paces Ferry Road about six feet from the curb and south along Grandview Drive about four feet from the curb. The four foot way between the two excavations was blocked by the piled dirt and a ditch-digging machine, two feet wide and fifteen feet long. The only way Mrs. Miller could cross the intersection to get to her automobile was to cross one of the excavations. It had been raining for about two hours, was raining heavily at the time, was dark and overcast, and there were no street lights. After surveying the situation she attempted to cross the old excavation, and slipped on dirt from the new excavation and fell into the old excavation. Allegedly, the defendant was negligent in blocking access across the intersection to Grandview Drive, in blocking the pathway between the two excavations with the ditch-digging machine, in failing to provide a means of crossing the intersection, in leaving dirt loose and unpacked next to the old excavation, in allowing a hazard and pitfall to exist, and in failing to illuminate the area. The trial judge sustained the defendant's general demurrers to the petitions, from which orders the plaintiffs appeal.
1. The cases having been terminated in the lower court before September 1, 1967, the provisions of the Georgia Civil Practice Act do not apply. See the opinion on motion for rehearing in Abercrombie v. Ledbetter-Johnson Co., 116 Ga. App. 376.
2. Construing the petitions most strongly against the pleader, as is required on general demurrer, although recognizing that questions of negligence and proximate cause are for jury determination except in clear and palpable cases, we think that the facts here alleged show as a matter of law that Mrs. Miller assumed whatever risks were involved in attempting to reach her automobile from her point of safety on the opposite side of the excavated area, regardless of any negligence on the part of the defendant which may have created a patently dangerous hazard to pedestrians.
Although the Supreme Court has recognized that one does not assume the risk of latent defects not discoverable in the exercise of ordinary care, such as the danger of a cave-in of a ditch three feet wide at the top and six feet wide at the bottom, the court also recognized in the same case that "Where, with full knowledge of the existence of a ditch in a highway, and without any emergency requiring it to be crossed, one endeavors to pass over the excavation, he will be treated as having voluntarily assumed all of the usual risks incident to the attempt," and "can not recover for damages occasioned by stepping or stumbling into the excavation, slipping from the wet or loose dirt on the bank to the bottom of the trench, or, by reason of inability or miscalculation, failing safely to step to the opposite side." Kent v. Southern Bell Tel. Tel. Co., 120 Ga. 980 (1, 2) ( 48 S.E. 399). To the same effect, see Sheats v. City of Rome, 92 Ga. 535 ( 17 S.E. 922); City of Columbus v. Griggs, 113 Ga. 597 ( 38 S.E. 953, 84 ASR 257).
It is clear from the petitions in the present cases that Mrs. Miller knew that the digging was in progress when she went to work, and that upon leaving work she surveyed the entire situation. We notice judicially that when she left work at 5:30 p. m. on June 24, 1965, it was daylight and before sunset, although the petition does show that it was dark and overcast on account of prevailing weather conditions. Mrs. Miller obviously determined that it was not feasible to cross the newly excavated ditch, and also obviously determined that she would attempt to cross the previously existing excavation, despite her obvious knowledge of the presence of newly excavated wet dirt, on which heavy rain was then falling. While the petitions do show that access to her parked automobile was completely blocked in the area of the intersection, unless she chose to cross either the old or the new excavation, the petitions do not show any emergency situation requiring Mrs. Miller to get to her automobile by crossing at the intersection. For aught that appears in the petitions she did not have to cross either excavation, but could have used a circuitous route to reach her automobile. The automobile was parked on a public street which is not shown to be without any means of access from the south.
The trial judge properly sustained the general demurrers to the petitions.
Judgment affirmed. Deen and Quillian, JJ., concur.