Miller v. Jones , 31 Ga. App. 318 ( 1923 )

Bell, J.

(After stating the foregoing facts.)

Under the authorities cited in the headnote there was no error in overruling the demurrer. See also Roach v. LeGree, 18 Ga. App. 250 (89 S. E. 167); McGee v. Hardacre, 27 Ga. App. 106 (3), (4) (107 S. E. 563); Zaban v. Coleman, 27 Ga. App. 376 (3) (108 S. E. 555). This case is distinguishable from Ball v. Walsh, 137 Ga. 350 (73 S. E. 585), and from Weyman v. Maynards 24 Ga. App. 94 (100 S. E. 25), for .in each of those cases it affirmatively appeared, from the’ declaration, that the plaintiff by the exercise of ordinary care could have avoided the consequences to himself caused by the defendant’s negligence. It also appears in the last-mentioned ease that the defects must necessarily have been plainly apparent and that the defendant had not only had opportunity equal to that of the landlord of discovering and understanding the defects (which furthermore existed at the time of the renting), but had actual knowledge thereof with full opportunity of notifying the landlord thereof prior to the time of the damage or injury.

Even after notice of defects given to the landlord the tenant is entitled to continue in the use of the premises without losing his right of redress- for any damage sustained, provided the conduct of the tenant in so doing is not such' as to preclude him from recovering, and he will not be so precluded unless by the exercise of ordinary care he could have avoided the consequences to himself of the defendant’s negligence. Stack v. Harris, supra; Civil Code (1910), § 4426. “There is no allegation from which the inference can be drawn, as matter of law, that they [the defects] were so obviously dangerous as to have put a prudent person upon notice of any danger which might result from their use; and, the demurrer to the declaration admitting the facts, it should have been overruled, and the questions of fact made in the ease submitted to the jury.” Johnson v. Collins, 98 Ga. 271, 274 (26 S. E. 744); Alexander v. Owen, 18 Ga. App. 326 (89 S. E. 437).

It will be noticed that the plaintiff is suing for injuries which he suffered in falling through the floor in the hall, which he alleges was in apparent good condition. It cannot be determined, as a matter of law, from the petition as framed that he was guilty of a want of ordinary care in using this portion of the dwelling because he had previously fallen through the floor in a different room, referred to in the petition as the “front room.” We think what is said in the Slack case, supra, on page 151, might be repeated with equal applicability to the case at bar.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.