It is erroneous for the court to charge the jury that certain acts or omissions constitute negligence when such acts or omissions are not negligent per se.
Ruby M. Eubanks filed suit in the Superior Court of Richmond County against Mrs. Irma Campbell to recover damages for personal injuries sustained by the plaintiff when she slipped and fell while descending the front porch steps of the defendant's home. The petition as amended alleged the following material facts: "That plaintiff and defendant are sisters, and their mother, Mrs. Annie Jones, resided with the defendant at the aforesaid premises.
"That Mrs. Mary Annie Jones, on July 4, 1961, was approximately eighty-six (86) years of age, and for some time prior thereto had been a complete invalid dependent upon the defendant, Mrs. Irma Campbell, for feeding, clothing and all other elements of care and nursing; and the defendant, Mrs. Irma Campbell, has assumed responsibility for said care and nursing, relieving the other children of Mrs. Mary Annie Jones, including the plaintiff, from any obligations on their part in respect to the care and nursing of Mrs. Mary Annie Jones, for a consideration of one hundred twenty and no/100ths ($120.00) dollars per month which was paid by six children of Mrs. Jones in equal monthly installments of twenty and no/100ths ($20.00) dollars each, said payments being current at the time of plaintiff's injuries on July 4, 1961.
"That the defendant on numerous occasions prior to July 3, 1961, by letter and oral request, invited plaintiff to defendant's household at 1925 Fenwick Street, Augusta, Georgia, for the purpose of assisting with the care and nursing of Mrs. Mary Annie Jones who had departed this life in August, 1961.
"That plaintiff, in response to the aforesaid invitations and requests, took vacation from her employment in Atlanta and on July 3, 1961, arrived at the premises owned and occupied by the defendant.
"That plaintiff, in response to the aforesaid invitations of defendant, was to remain upon the premises until approximately July 10, 1961, when plaintiff would return to her home in Atlanta, Georgia, during which time plaintiff was to assist and relieve the defendant in her nursing and care of Mrs Mary Annie Jones, both day and night.
"That plaintiff, from the time of her arrival on July 3, 1961, until the time of the injury complained of herein, on July 4, 1961, did assist and relieve the defendant in the feeding, clothing and all other elements of nursing of Mrs. Mary Annie Jones.
"That plaintiff was not offered, and did not expect to receive, any payment or other benefit for her services, but performed same entirely for the benefit of defendant and Mrs. Mary Annie Jones.
"That there was common interest and mutual advantage on the part of plaintiff and defendant arising from the plaintiff being on the premises of defendant.
"That by reason of the aforesaid facts plaintiff was an invitee upon the premises of defendant at all times herein mentioned.
"That on July 4, 1961, at approximately 8:00 P.M., plaintiff was in the backyard of the premises owned and occupied by the defendant making ice cream for members of the household including the defendant and Mrs. Mary Annie Jones. During this time the defendant went to the front of the house and put into operation a water sprinkler and placed it in such position that water was thrown upon the brick and cement steps leading from the front porch of the premises to the sidewalk. The water mixed with dirt, dust and pollen upon the steps in such fashion that the surface of the steps was rendered highly slippery and extremely hazardous to persons using same.
"That the defendant did not turn on the porch light or otherwise act to illuminate the area and give persons using the steps visibility of the hazardous conditions which existed by reason of the steps being wet and very slippery.
"That plaintiff had no knowledge of said hazardous conditions or risk involved. Said conditions and the danger involved were not obvious or apparent to plaintiff, and there was nothing to put the plaintiff on notice of said conditions or notice of the risk and danger involved.
"That at approximately 8:30 P.M., July 4, 1961, plaintiff walked to the steps intending to go to her car which was parked in front of the house and remove an article of clothing. At said time it was full night, but plaintiff had sufficient visibility to see the steps but insufficient visibility to see the wet and hazardous conditions which existed as aforesaid.
"That plaintiff attempted to use the steps but her feet slipped on the wet surface throwing her violently to the ground and resulting in the severe injuries hereinafter stated."
The petition set forth the injuries and damages sustained by the plaintiff and alleged that the same was the proximate result of the defendant's negligence which was set forth as follows: "The defendant was negligent in turning on the water sprinkler and placing it in such position that water was thrown upon the steps thereby creating a dangerous and hazardous condition.
"The defendant was negligent in failing to turn on the porch light or otherwise illuminating the area whereby the aforesaid dangerous and hazardous condition would have been apparent to plaintiff or others using the steps.
"The defendant was negligent in failing to keep the premises and approaches safe, thereby violating the provisions of Ga. Code 105-401 and thereby being chargeable with negligence per se.
The trial court overruled the defendant's general demurrer to the petition and the case proceeded to trial before a jury who returned a verdict for the plaintiff. The exception is to the orders of the trial court overruling the general demurrer to the petition and denying the defendant's motion for judgment notwithstanding the verdict and her motion for new trial as amended.
1. It is contended by counsel for the defendant that the allegations of the petition and the evidence adduced on the trial of this case affirmatively disclosed that the plaintiff was merely a "social guest" in the home of the defendant and thus occupied the status of a licensee to whom the defendant would be liable only for the infliction of wilful or wanton injury. It is our opinion, however, that both the allegations of the petition and the evidence show a sufficient "mutuality of interest," as that term is defined and applied in the decisions of this court in Flint River Cotton Mills v. Colley, 71 Ga. App. 288 (30 SE2d 426)
and Martin v. Henson, 95 Ga. App. 715 (99 SE2d 251)
, between the plaintiff and the defendant as would constitute the plaintiff an invitee in the defendant's home; and, as such, the defendant owed to her the duty of exercising ordinary care to maintain the premises and approaches thereto in a safe condition under the provisions of Code 105-401. Whether or not the defendant was negligent as charged in the petition, whether or not the plaintiff failed to exercise ordinary care for her own safety as contended by the defendant, and whose or what negligence was the proximate cause of the plaintiff's injuries were questions for determination by the jury under the allegations of the petition and the facts and circumstances developed by the evidence on the trial of the case. The trial court did not err therefore in overruling the general demurrer to the petition nor in thereafter denying the defendant's motion for judgment notwithstanding the verdict and her motion for new trial on the general grounds.
2. The sole special ground of the amended motion for new trial assigns error on the following excerpt from the charge of the court: "I charge you, members of the jury, for the defendant to turn on a sprinkler and place it where she did and allow the steps to become wet, that it was negligence for defendant not to have turned on the porch light; that she was negligent in not warning plaintiff of the condition which existed, if it was known to the defendant."
It is erroneous for a judge to charge a jury that certain acts or omissions constitute negligence when such acts or omissions are not negligent per se, Louisville &c. R. Co. v. Biggs, 141 Ga. 562 (3) (81 SE 900)
; Georgia &c. R. Co. v. Haygood, 103 Ga. App. 381
, 386 (119 SE2d 277
); and since it was clearly a question for determination by the jury as to whether or not the acts set forth in the above excerpt from the charge constituted negligence on the part of the defendant, the same not being negligence per se, it was prejudicial error for the court to give said instruction to the jury as contended in this ground. This instruction was not corrected elsewhere in the charge and we cannot agree with the contention that this charge by the court on a very vital element of the case was a mere slip of the tongue or inaccuracy of expression which was rendered harmless to the defendant by the charge as a whole. The giving of the same in charge to the jury requires the grant of a new trial in this case.
Judgment affirmed in part; reversed in part. Nichols, P. J., and Frankum, J., concur.