dissenting.
I respectfully dissent from the judgment of affirmance. Under the facts as recited by the majority, a jury question is presented as to whether plaintiff failed to exercise ordinary care for her own safety under all the attendant circumstances. Consequently, it is my view that the case sub judice is controlled favorably to the plaintiff by the whole court decision in Pinkney v. VMS Realty, 189 Ga. App. 177 (375 SE2d 90). In Pinkney, just as in the case sub judice, the plaintiff “conceded that she was aware of the existence of the [alleged hazard] and that she could have seen [the difference in height or] the drop-off if she had ‘looked for it very closely,’ but she indicated that its location was not readily observable because the two levels appeared to blend together due to the [inadequate] lighting. . . .” Thus, the whole court reversed the grant of summary judgment, holding that “[w]hether [plaintiff’s] failure to see the ledge constituted a lack of due care for her own safety under these circumstances and whether, if so, her [own] negligence outweighed any possible negligence on the part of the [premises owner or occupier] in failing to provide . . . warning markers, and/or better lighting are issues of fact to be resolved by a jury. [Cits.]” Pinkney v. VMS Realty, 189 Ga. App. 177, 179, supra. It is well settled in Georgia, however, that questions of negligence, diligence, comparative negligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain, palpable and indisputable cases. See, e.g., Mixon v. City of Warner Robins, 264 Ga. 385, 389 (2), 391 (444 SE2d 761). In my view, the case sub judice falls within the general rule rather than the rare exception, such that summary judgment was inappropriate. As my colleagues in the majority nevertheless would affirm, I respectfully dissent.
I am authorized to state that Presiding Judge Pope, Judge Blackburn and Judge Ruffin join in this dissent.
Groover & Childs, Craig M. Childs, for appellees.