Bass v. Southern Enterprises Inc.

Blood worth, J. (After stating the foregoing facts.) It is the fixed law of this State that questions of diligence and’ of negligence, and of what is ordinary care, address themselves peculiarly to the jury, and that a judge should decline to solve them except in plain, indisputable cases. It is also well settled that “in an action founded on negligence mere general averments of negligence are sufficient as against a general demurrer.” This case does not present itself to the members of this court as a plain and indisputable one. Section 4420 of the Civil Code (1910) is as follows: “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” The plaintiff was in the theatre by invitation, and for a lawful purpose, and while there was injured.. Where a person is on premises by invitation, lawlessness or wantonness on the part of the owner of the premises is not necessary to the existence of liability, but ordinary neglect from some act either of omission or of commission may render the owner liable. The petition in this case set out a cause of action, and we think the allegations of negligence therein are sufficient to carry the case to a jury; and that the léarned, careful, and painstaking judge who presided at the trial erred in sustaining the general demurrer and dismissing the petition. Judgment reversed. Broyles, G. J., and Luke, J., concur.