lawskills
Loading
Did you know you can download our entire database for free?


Resources
[more] 

Georgia Caselaw:
Browse
Greatest Hits

Georgia Code: Browse

(external) Findlaw Georgia Law Resources


This site exists because of donors like you.

Thanks!


Lawskills.com Georgia Caselaw
KORN v. TAMIAMI TRAIL TOURS, INC.
40129.
Action for damages. Tift Superior Court. Before Judge Gray.
BELL, Presiding Judge.
1. Where a petition seeking damages alleges an injury in the State of Florida and an additional transitory tort based on aggravation of the injury, the law of the forum will be applied when no law of Florida governing the cause is pleaded.
2. (a) The diligence which a carrier owes to its passengers while within a station is ordinary diligence.
(b) The court will take judicial notice that the mere existence and maintenance of steps do not alone constitute negligence.
(c) Steps may be constructed or maintained in a negligent status, but circumstances showing how these things constitute negligence are essential to be pleaded in order to state a cause of action.
(b) Although the carrier may not be liable for the original injury, the carrier may be held liable for any aggravation of the injury which was occasioned solely by the failure of the carrier to fulfill its duty in securing the promised medical services to treat the injury.
(c) A general demurrer goes to the whole pleading to which it is addressed and should be overruled if any part is good in substance. The had part in pleading does not make the whole bad; the good part makes the whole good enough to withstand a general demurrer.
Plaintiff seeks to recover certain damages allegedly occasioned by him as the result of injuries inflicted on his wife while she was en route as a passenger on the defendant's bus line from Pensacola, Fla., to Tifton, Ga. In substance the petition alleges that plaintiff's wife, while a passenger on the defendant's bus, was suffering a serious incapacity, her neck at the time being stiff and her head and chin twisted and tilted to the right, the top of her head pointing to the right with her chin inclined to the left and at an angle upward; the position of her head prevented her from looking downward. The abnormal position in which plaintiff's wife carried her head was known to the defendant's bus driver and to other agents of defendants.
The bus on which she was riding having made a rest stop at the station at Eglin Field, plaintiff's wife disembarked and went inside the station to the restroom. There was a 3" to 3 1/2" step at the front entrance to the bus terminal at Eglin Field which caused petitioner's wife to fall on her return from the restroom. This step was obscured by the door to the entrance of the terminal. She had previously entered the facility on her way to the restroom through this same place and over the same step. The floor of the bus terminal was of the same color and texture as the outside porch upon which she fell, making it difficult from inside the terminal to see exactly where the step to the outside porch was located. The fall injured her and caused her severe and excruciating pain.
Knowing of the abnormal position of her head, it was the duty of the defendant to furnish assistance to plaintiff's wife while riding as a passenger on the bus, while en route to the restroom in the bus terminal at Eglin Field, and while returning from the restroom to the bus. The bus driver failed to fulfill this duty by allowing petitioner's wife to alight from the bus, and without any help or assistance, to walk into the bus terminal and restroom, and then to walk from the restroom through the same door by which she had entered the bus station in returning to board the bus.
After falling at the Eglin Field, Fla., bus station facility, and while suffering excruciating pain, plaintiff's wife requested an agent of defendant to call a physician to treat her so as to alleviate the pain; the agent did not do so but promised to have medical assistance at the subsequent stop at Panama City, Fla.; although the driver advised the agent in charge at the Panama City station of what had happened to her, the agent refused to obtain medical aid for her at that place, but assured her that he would call Tallahassee and have someone in authority meet her there; relying on the promise that she would be treated in Tallahassee, she undertook to continue the journey to that point although she was experiencing great pain and agony; on reaching Tallahassee no one met her, and there was no doctor or physician available; during the approximately 75-mile trip from Eglin Field to Panama City and the 98-mile journey from Panama City to Tallahassee, plaintiff's wife's leg started swelling and continued to swell, and the swelling was accompanied by violent throbbing and pain to such an extent that she was barely able to walk upon her leg; on arrival at Tallahassee, no one having met her, she hobbled to defendant's ticket office to inquire for the promised assistance, but she was advised by the Tallahassee agent that no one could help her and was advised to continue on to Tifton; that it was the duty of the defendant, under the circumstances and conditions existing, to have caused a doctor to administer to her after she suffered her injury; that plaintiff's wife was alone with no one to look after her; that because of the sharp, intensive, excruciating pain which petitioner's wife suffered en route from Eglin Field to Tifton, Georgia, she went into shock from which she has never completely recovered, and that the shock would have been materially reduced had the defendant's agents furnished doctors as promised at the various points.
The petition specifies as the negligence causing the injury to petitioner's wife: the failure of the defendant, after knowing of her condition and her inability to look downward, to fulfill the duty owed to petitioner's wife to have furnished her with assistance and to have accompanied her from the bus to and from the bus terminal and down the step where she fell; the failure to extend warning to petitioner's wife of the step to the bus terminal so that she could have known of its existence; the failure to provide and maintain safe entrances 'and exits to the bus terminal at Eglin Field; the failure to post warning signs inside the station at the front exit warning passengers of the existence of the 3" to 3 1/2" step; and in maintaining the step.
Negligence is also alleged against the defendant by reason of its failure to provide medical attention for plaintiff's wife after she fell and was injured at the intermediate terminal during her trip from Pensacola, Fla., to Tifton, Ga., as defendant, through its agents, had agreed to do.
Through all of these activities, the petition charges that the carrier had the duty of exercising extraordinary care for the safety of his wife.
The general demurrer to the petition was sustained by the trial court, and the petition was dismissed. It is to this judgment that exceptions are brought.
1. The extensive petition before us seeks damages for an alleged injury which occurred in the State of Florida and, in effect, alleges and seeks damages for an additional transitory tort based on aggravation of the injury occurring interstate in Florida and Georgia. The petition alleges no law of Florida governing the causes. Accordingly, the law of the forum will be applied in determining whether the petition states a cause of action. Garnto v. Henson, 88 Ga. App. 320, 322 (76 SE2d 636); McAlhany v. Allen, 195 Ga. 150 (1) (23 SE2d 676); Wood v. Wood, 200 Ga. 796, 798 (38 SE2d 545); Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 811 (1) (7 SE2d 737); Nalley Chevrolet v. California Bank, 100 Ga. App. 197, 199 (2) (110 SE2d 577).
2. (a) The diligence which a carrier owes to its passengers to protect their persons while within a station is ordinary diligence. Nashville, C. &c. R. v. Mooneyham, 37 Ga. App. 236 (1) (139 SE 589); Southern R. Co. v. Reeves, 116 Ga. 743 (2) (42 SE 1015). "The carrier's duty of exercising ordinary care to furnish safe station facilities for those to be received or for those who have been discharged as passengers is not to be confused with the carrier's duty to use extraordinary care in receiving, transporting, and discharging its passengers." Delta Air Lines v. Millirons, 87 Ga. App. 334, 341 (73 SE2d 598); Georgia, C. &c. R. Co. v. Brown, 120 Ga. 380, 381 (47 SE 942).
The petition here affirmatively alleges that petitioner's wife, the passenger, was injured when she fell down a step at the front entrance to the bus station when returning to the bus from the restroom within the station. She had previously entered the station by successfully negotiating the same step.
Obviously the fall occurred during a period when the passenger had departed her position on the bus where the carrier had the duty of exercising extraordinary diligence for her safety, and had entered the station where she was merely an invitee entitled to no more than ordinary care. Thus, the petition itself, by alleging the place where the injury occurred and the movements of the passenger preceding the injury, contradicts and refutes its other allegations which charged actionable negligence to the carrier for failing to furnish assistance to the passenger (a) when she was riding as a passenger on the bus (for she was not injured while in the bus or while embarking or disembarking from it), and (b) while going to the restroom and returning (for it is not a legal duty of an owner or occupier of premises to furnish assistance to its invitees).
It follows that no cause of action is stated by those numerous superfluous allegations which refer to the unnatural position in which petitioner's wife was forced to carry her head nor by those which seek to impose upon the carrier duties of assistance to her because of knowledge of that condition.
(b) No actionable negligence is stated in the petition sufficient to impose liability upon the defendant for maintaining the step at the entrance to the bus station. The petitioner's theory in seeking to assert negligence against the defendant for his wife's fall down the step was predicated upon the erroneous view, as held in Division 2 (a) above, flat the defendant owed his wife the duty of extraordinary diligence while in the bus station when only ordinary care is the legal standard. Stripping the petition of its superfluous matter as required by the holding in 2 (a), the petition alleges nothing in relation to the step which would authorize the imposition of liability when measured by the standard of ordinary care.
This court, in Holloman v. Henry Grady Hotel Co., 42 Ga. App. 347 (156 SE 275) and other cases, has taken judicial notice that marble is a proper material from which to construct a stairway, and so is brick. Maloof v. Blackmon, 105 Ga. App. 207 (124 SE2d 441). In this petition there is no allegation charging negligence as to the type of material used in the construction of the step, nor is there anything asserted to show negligence in the construction or maintenance of the step other than that the step was indeed there. If the court may take judicial notice that certain materials are proper ones from which steps may be constructed, all the more the court may take judicial notice, as we do, that the mere existence and maintenance of steps do not alone constitute negligence. Steps may be constructed or maintained in a negligent status but circumstances showing how these things constitute negligence are essential to be pleaded in order to state a cause of action. There is nothing pleaded here to show that the step in question was less safe than those provided by ordinarily prudent owners and occupiers of land for their invitees. Pettit v. Stiles Hotel Co., 97 Ga. App. 137 (102 SE2d 693); Watson v. McCrory Stores, 97 Ga. App. 516 (1) (103 SE2d 648); Van v. Teche Lines, Inc. (La. App.) 164 S 267. (See the two-judge majority opinion holding to the contrary in Wardlaw v. Executive Committee of the Baptist Convention, 47 Ga. App. 595 (2) (170 SE 830), where the petition contained stronger allegations than here and which case was specifically reversed by the Supreme Court in Executive Committee of the Baptist Convention v. Wardlaw, 180 Ga. 148 (178 SE 155). Note particularly the dissent of Judge Jenkins in the first Wardlaw case which was cited with approval by the Supreme Court in Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72 (190 SE 354).)
By an amendment to the petition, petitioner alleged that the floor of the bus terminal was the same color as the outside porch which made it difficult from the inside of the terminal to see exactly where the step was located. This adds nothing to the petition except to demonstrate, when construing the petition against the pleader, that the step could have been visible to the injured wife if she had exercised ordinary care for her safety. This, coupled with the affirmative allegation that she had successfully negotiated the same step en route to the restroom, makes it obvious from the facts alleged that the proximate cause of her injury was her own negligence and not the failure of the defendant in exercising ordinary care to keep the premises and approaches safe as required by Code 105-401.
The petition failed to state a cause of action against the carrier for the original injury suffered by the plaintiff's wife when she fell down the step at the Eglin Field facility.
3. In reviewing the accuracy of the trial judge's ruling on the general demurrer, a more difficult question arises from those allegations of the petition which narrate the events occurring after the plaintiff's wife sustained her injuries. These allegations raise the question as to whether the carrier may have breached a legal duty owing to petitioner's wife as a passenger after her injury which would warrant the imposition of liability upon it for any aggravation of damages petitioner may have incurred through the failure of the carrier's agents to make available to his wife the requested and promised medical services.
While there appears to be no direct holding in this jurisdiction on the point, several cases seem to suggest that where a passenger is injured and in need of medical attention and the carrier has knowledge of this fact, the proper exercise of the requisite extraordinary diligence of the carrier imposes upon the carrier the duty to assist the passenger in securing the medical servIces. As stated by Justice Lumpkin in Georgia R. &c. Co. v. Rives, 137 Ga. 376, 380 (73 SE 645, 38 LRA (NS) 564): "The underlying principle is, that a carrier of passengers is bound to use extraordinary care for their safety in connection with their carriage and discharge; that what such care requires to be done depends on the facts of the case; and that if a passenger is manifestly infirm, sick, or blind, and this is known to the servants of the carrier, or ought to be discovered by reasonable attention to their duties, extraordinary care must be used in the light of such facts." In the Rives case Justice Lumpkin placed significance on the fact that the passenger there had been received with full knowledge of his blind and unattended condition, and it was alleged that a promise of assistance was given. This was sufficient, in his view, to place flee duty on the carrier of rendering the promised assistance. See Southern R. Co. v. Hobbs, 118 Ga. 227, 230, 231 (45 SE 23, 63 LRA 68).
In the case of Central of Ga. R. Co. v. Madden, 135 Ga. 205, 212 (69 SE 165, 31 LRA (NS) 813, 21 AC 1077), the Supreme Court, through Mr. Chief Justice Fish, quoted with approval the rule that: "The carrier, it has been said, is under no duty to turn his vehicles into hospitals, or his employees into nurses. But if an unattended person who is so sick, aged, or otherwise infirm as to be unable to assist or care for himself, be accepted as a passenger, the carrier, if he has notice of the passenger's condition, is bound to exercise for his safety a degree of care commensurate with the responsibility assumed, and that would be such care as would be reasonably necessary to protect him from injury in view of his physical or mental condition. And if the passenger should be so unfortunate as to become sick while upon the journey, and in consequence less able to look after himself, he would not thereby be put beyond the pale of care and protection, and it would be the duty of the carrier, if the passenger's condition were made known to him, to give him such care and protection beyond that demanded under ordinary circumstances as would be reasonably practicable, with the facilities at hand, without unduly delaying the train or unreasonably interfering with the safety and comfort of the other passengers." For cases in general accord with these statements quoted from Rives and Madden see Middleton v. Whitridge, 213 N.Y. 499 (108 NE 192); Alabama Great Southern R. Co. v. Alsup, 101 F2d 175, 176 (5th Cir.); Continental Southern Lines v. Robertson, 241 Miss. 796 (133 S2d 543); Searcy v. Interurban Transportation Co., 189 La. 183 (179 S 75); Alabama Great Southern R. Co. v. Taylor, 190 Miss. 69 (199 S 310).
Where, as here, portions of the petition allege that the agents of the defendant carrier had knowledge of the injuries sustained by the plaintiff's wife and, while she occupied the status of a passenger, promised at her request to call a physician to treat her for her injuries, the petition alleged a duty resting upon the carrier of rendering the promised assistance. In addition, the petition alleges a breach of this duty causing an aggravation of injuries, and this, we think, is sufficient to state a cause of action.
While the carrier may not be held liable for the results of the original injury nor the complications which would have in any event followed the injury, it may be held liable for the aggravation of the injury which was occasioned solely by the failure of the carrier to fulfill its duty in securing the promised medical services to treat the injury. This presents a jury question.
"A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance. The bad part in pleading does not make the whole bad; the good part makes the whole good enough to withstand a general demurrer." Bailey v. Bell, 208 Ga. 715, 717 (69 SE2d 272).
The trial court erred in sustaining the general demurrer and in dismissing the petition.
The judgment is reversed with directions to the trial court to cause the petition to be recast so as to conform to the holdings enunciated in this opinion.
Perry, Watters & Langstaff, Robert B. Langstaff, contra.
G. Gerald Kunes, Robert R. Forrester, for plaintiff in error.
DECIDED OCTOBER 7, 1963 -- REHEARING DENIED OCTOBER 18, 1963.
Friday May 22 22:22 EDT


This site exists because of donors like you.

Thanks!


Valid HTML 4.0!

Valid CSS!





Home - Tour - Disclaimer - Privacy - Contact Us
Copyright © 2000,2002,2004 Lawskills.com