Opinion
38336.
DECIDED JUNE 29, 1960.
Action for damages. Floyd Superior Court. Before Judge Hicks. February 29, 1960.
Matthews, Maddox, Walton Smith, John W. Maddox, for plaintiff in error.
Fullbright Duffey, Henry J. Fullbright, Jr., contra.
Under the facts here alleged, the jury could find that the carton in question was negligently placed so as to protrude into the aisle in such a manner as to threaten danger to customers whose attention was diverted from the floor by adjacent displays of merchandise. The court did not err in overruling the defendant's general demurrer to the amended petition.
DECIDED JUNE 29, 1960.
Mrs. Cordelia B. Briggs filed her petition in Floyd Superior Court against Big Apple Super Market of Rome, Inc., seeking to recover damages for injuries sustained in a fall in the defendant's grocery store on December 24, 1958. The pertinent allegations of the amended petition are as follows: "4. That said store is so arranged as to have counters, racks or shelves on the floor with narrow aisles, lanes or passageways between them for customers to walk along and select merchandise on such racks or shelves and take such merchandise to a certain part of the store to have the purchases checked and to there pay for them. 5. That said counters, racks or shelves were located as they were for the purposes of causing prospective customers, as they walked along the aisles, to read the labels and prices on the merchandise displayed thereon and were made attractive and arranged so as to entice and induce customers in the store to look at them and select merchandise as they passed along the said narrow aisles, corridors or passageways. 6. That defendant, through its agents, employees or servants who are known to defendant, but unknown to plaintiff, carelessly and negligently left a certain carton, box or shipping case from which merchandise had been removed or was to be removed for replenishing or adding to merchandise on said display counters, shelves or racks on the floor and in a narrow aisle, lane or passageway between racks or display cases, along which plaintiff was passing as she selected her merchandise. Said carton, box or shipping case was rectangular in shape, dull brown or tan color of unbleached kraft paper or cardboard and measured approximately twenty-four by eighteen inches to the best of plaintiff's judgment as she did not see the obstruction before her fall and did not examine it closely after her fall. Plaintiff says that she was walking along the aisle very near to the rack or counter displaying canned fruit juices and to the best of her knowledge the box or carton was very near to the base of said fruit juice display counter, extended out some eighteen to twenty-four inches into the aisle along which she was walking, pushing the shopping cart ahead of her, which said aisle or passageway was of sufficient width to allow two of the metal shopping carts supplied to customers by defendant to meet or pass and she would estimate the aisle to be about four or five feet in width. 7. That although plaintiff is more than eighty (80) years of age her eyesight is good and prior to said December 24, 1958, she was in good health and followed her profession of nursing. 8. Plaintiff had no knowledge that said box, carton or shipping case was left in the narrow aisle, walkway, corridor, lane or passageway until her foot struck the same and she fell to the hard floor of the store building occupied by defendant. 9. That as plaintiff walked along the narrow aisle, corridor or passageway, provided by defendant for that purpose, selecting her purchases, from attractive display counters, she struck said obstruction and was violently thrown to the floor thereby fracturing her hip. 10. That at the time of her fall and injury plaintiff was lawfully and rightfully and at the invitation of defendant on the aforesaid premises of defendant and therefore it was the duty of defendant by and through its agents, employees and servants in its behalf to exercise all due care and caution for the safety of plaintiff while on premises occupied by defendant but defendant did not exercise due care in behalf of plaintiff but by its agents or servants in its behalf had negligently placed and left said carton, box or shipping case protruding and extending on and into that certain narrow aisle or lane used by persons lawfully in the store. 11. That on said December 24, 1958, when she was in the supermarket or store of the defendant, she was in the exercise of due care for her own welfare and safety but did not keep her eyes towards the floor at all times, but was walking along and looking at and selecting merchandise in said display shelves and racks as was the purpose of said display. 12. That the sole proximate cause of her fall and injury was the negligence of defendant, by and through its servants, agents or employees in placing or allowing to remain in the remain in the narrow aisle, lane or walkway the carton, or shipping case or box aforesaid." Error is assigned on the judgment of the court overruling the defendant's general demurrer to the amended petition.
"A merchant has the right to place display baskets in the aisles of his store and he may place cartons and containers in the aisles while he places articles on the display shelves, and a customer may expect to find such objects in the aisles; nevertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone." Kitchens v. Davis, 96 Ga. App. 30, 34 (1) ( 99 S.E.2d 266). It is contended that the petition fails to set forth a cause of action and shows affirmatively that the plaintiff's injury was caused by her own negligence in failing to observe and avoid the article in the aisle. "The customer is not bound to avoid tripping or stumbling over articles which are not usually, or are unusually, obstructing the aisles of a store, and which in the exercise of ordinary care he did not observe. He is not barred of a recovery simply because by extreme care on his part it would have been possible for him to have discerned the articles negligently left in the aisles or passageways customarily used by the store patrons at the merchant's tacit invitation." King Hardware Co. v. Teplis, 91 Ga. App. 13, 15 ( 84 S.E.2d 686).
The question whether the plaintiff might have discovered the articles in the aisle by the exercise of ordinary care must be determined in the light of the attendant circumstances. Kitchens v. Davis, 96 Ga. App. 30, supra. The petition alleges that her attention was diverted by displays of merchandise on nearby shelves. It is therefore a question for the jury whether she should, in the exercise of ordinary care, have discovered the carton in the aisle and avoided tripping over it. Stanfield v. Forrest Five c. Stores, 95 Ga. App. 739 ( 99 S.E.2d 167) and cits.; Rich's Inc. v. Denmon, 101 Ga. App. 600 (1) ( 114 S.E.2d 462).
Under the facts here alleged, the jury could find that the carton in question was negligently placed so as to protrude into the aisle in such a manner as to threaten danger to customers whose attention was diverted from the floor by adjacent displays of merchandise. The court did not err in overruling the defendant's general demurrer to the amended petition.
Judgment affirmed. Nichols and Bell, JJ., concur.