Home Federal Savings & Loan Ass'n v. Hulsey

Eberhardt, Judge,

concurring specially. I concur in all that is said in the foregoing opinion, but feel that it should be added *125that the overruling of the general demurrer was error for the further reason that all of the allegations of the petition, when considered together, do not show a lack of ordinary care on the part of the defendant, and thus fail to allege any actionable negligence. Water running along a street or sidewalk is not per se a dangerous thing. If such were held to be so, then every owner of property would be exposed to an unusual hazard every time it rains. It appears from the allegations of the petition that the presence of water on the sidewalk was apparent to plaintiff before he stepped into it. It is alleged that the water was clear, and that the presence therein of foreign matter was not discernible by the natural eye. If not discernible to plaintiff, then it was likewise not discernible to defendant. Nor would the fact that it came from the roof of defendant’s building, of metal construction with some tar preparation in places, indicate that there was or might be any dangerous substance in the water. Such materials are generally and frequently used in the roof of buildings. To hold that defendant here was under a duty to make some analysis or microscopic examination of the water to ascertain whether there was any foreign substance therein that would cause it to render the sidewalk slippery would be to' exact of the owner a degree of care much higher than that which the law requires. Conaway v. McCrory Stores Corp., 82 Ga. App. 97, 101 (60 SE2d 631).