Opinion
33529.
DECIDED JUNE 9, 1951.
Damages; from Lowndes Superior Court — Judge Lilly. February 17, 1951.
Franklin, Eberhardt Barham, for plaintiff in error.
Copeland Converse, T. Guy Connell, contra.
It does not affirmatively appear from the allegations of the plaintiff's petition that he could have avoided the injury to himself, caused by the defendant's alleged negligence, by the exercise of ordinary care, and the trial judge did not err in overruling the defendant's general demurrer.
DECIDED JUNE 9, 1951.
Charles E. Barrett filed suit against P. H. Bray in the Superior Court of Lowndes County, and the petition as amended alleged substantially that the defendant operated a grocery store in Valdosta, Georgia, and the plaintiff operated a shoe repair shop there. They occupied adjoining storerooms in the same building, both storerooms fronting on a paved street in said city. Immediately in front of the main entrance to the defendant's place of business there was a canvas awning, commonly known as a drop awning, which could be raised or lowered as desired by the defendant. In its lowered position, the awning extended over the sidewalk approaching the main entrance of the defendant's store, and it was impossible to enter the store by this entrance without walking under the awning. The awning was constructed with iron rods as a supporting and forming frame, and when lowered it extended about five feet outward from the building. The lower side supporting rods are approximately five feet long and are coupled at the building's edge to a vertical rod or sleeve. The coupling mechanism is designed to permit the lower side supporting rods to slip up and down the vertical rods, making it possible to vary the height of the side supporting rods above the sidewalk level, depending upon the position of the coupling on the vertical rod. The frame of the awning is covered with canvas, and a canvas flap or fringe extends about nine inches below the lower side and front supporting rods. Awnings of this general type are customarily and properly fitted with some kind of safety device, usually a chain or cable attached to the side supporting rod to prevent the side supporting rod from changing positions and from changing its height above the sidewalk. The lower side supporting rod of the awning on its north side in a lowered position was not more than 3.5 feet from the middle of the plaintiff's door. The awning was owned by the defendant and was under the exclusive control of the defendant and his employees.
It was alleged that on June 2, 1949, at about one p. m., the plaintiff left his place of business to go to the defendant's store to buy a package of cigarettes. The plaintiff walked out of his front door onto the sidewalk, turned southward (to his left), and had taken two or three steps when his forehead struck the lower side supporting rod of the awning on its north side (the awning being in a lowered position). His glasses were bent out of shape. The blow stunned the plaintiff, and to keep from falling, he held to the iron rod for a few seconds and then walked back into his place of business and sat down.
It was alleged that the route which the plaintiff followed was his customary route and method of travel from his own place to that of the defendant, and that he had many times traversed the same path in the same manner without harm or injury. As he left the door to his place of business, the plaintiff instinctively glanced at the sidewalk to assure his safety in walking, and his head was momentarily lowered immediately after he left his own place of business. Because of the short distance between the plaintiff's door and the awning rod, because of the fact that he had many times previously traversed with safety the same route over which he traveled, and because he lowered his head momentarily to examine the sidewalk in front of him, the plaintiff had insufficient time and opportunity to observe or see the condition of the awning in front of the defendant's store. On account of the nearness of the awning rod to the plaintiff's door and of the gradual left turn necessary to be made in order to approach the entrance to the defendant's store, the awning rod was never in the line of the plaintiff's vision until the instant when this head struck the rod. On the previous occasions when the plaintiff had traversed the same route from his own place of business to the defendant's store, the lower side supporting rods of the awning on the north side had always been sufficiently high above the sidewalk to permit the plaintiff to walk under the same without danger of striking his head. On the occasion when the plaintiff's head struck the awning rod, the awnings and awning rods were in a much lower position than previously.
The injury and damage sustained by the plaintiff as the result of the blow from the awning were set out in the petition, and it was alleged that the failure of the defendant to exercise ordinary care in keeping the approach to his premises in a safe condition was the proximate cause of the plaintiff's injury and damage. When the plaintiff was injured, the lower side supporting rod of the awning on the north side was approximately five feet high at the building's edge, and approximately six feet high at the forward edge. The awning was not then equipped with any kind of safety device, such as chains, cables, or wires attached to the lower side supporting rod to keep this rod in its proper position and height above the sidewalk, and this was known to the defendant. When the plaintiff was injured, that part of the side rod on the north side of the awning where the rod couples to the vertical rod or sleeve was defective, so that the lower side supporting rod would not remain in a safe position when the awning was lowered, and this was known to the defendant.
The defendant was charged with the following particular acts of negligence: (a) At the times mentioned, there was of force and effect in the City of Valdosta, Georgia, a valid municipal ordinance which reads as follows: "§ 17. Drop Awnings. Awnings composed of cloth and supported by iron frames folding back against the wall, commonly known as drop awnings, shall be permitted anywhere, provided they shall not be less than fourteen (14) feet high over the sidewalk at the wall, and not less than seven (7) feet at the front, unless permitted by the Street Committee. This ordinance shall apply to all streets that are paved or shall be paved." (Ch. 13, § 12 [sic], The Code of the City of Valdosta, 1939). The defendant was in violation of this ordinance in that his awning was at the time of the plaintiff's injury only 6.2 feet high at the front, and only approximately five feet high at the wall edge. This was negligence per se. (b) In maintaining an awning over the approach to his place of business, knowing that it was not equipped with any safety device which would prevent the side supporting rods from falling to a height too low for the safety of those desiring to use the sidewalk or to enter the defendant's place of business. (c) In maintaining an awning over the approach to his place of business knowing that the side rod coupling mechanism was defective and would not keep the side rod in a fixed position. (d) In failing to discover and remedy the condition of the north side supporting rod of the awning, after the same had fallen, which condition could have been discovered by the defendant in the exercise of ordinary care.
The defendant demurred generally and specially to the petition, the general demurrer being as follows: "Defendant demurs to the complaint as a whole and moves to dismiss the same because it sets forth no cause of action against the defendant." This demurrer was overruled, and the defendant excepted. The special demurrers were not ruled on.
Code § 105-401 provides: "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 occupied the position of an invitee as he was undertaking to enter the defendant's store to buy a package of cigarettes at the time of his alleged injury. It is assumed in the argument in the brief of the plaintiff in error that the defendant was guilty of negligence in that the side supporting rod of the awning was not high enough above the sidewalk to permit a person to pass under it without lowering his head slightly.
But the contention of the plaintiff in error (the defendant in the court below) is that the plaintiff, by the exercise of ordinary care, could have avoided his injury caused by the defendant's alleged negligence, and that the general demurrer to the petition should have been sustained for this reason. Code § 105-603 is as follows: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." It is a well-established principle of law that questions of negligence, diligence, and proximate cause are peculiarly for the jury and will not be solved by the court as a matter of law, except in plain and indisputable cases. Ordinary care or diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. Whether the plaintiff was in the exercise of such care under the circumstances is a matter of defense; and unless the allegations of his petition affirmatively show that he did not exercise ordinary care to avoid the defendant's alleged negligence, then the petition is good against the general demurrer.
The plaintiff walked out of the front door of his store onto the sidewalk, turned immediately to his left and had taken two or three steps when his head struck the supporting rod of the awning in front of the defendant's store, inflicting the injury complained of. The route and method which the plaintiff followed in going from his place of business to that of the defendant at the time in question was the customary route used by him, and he had many times traversed the same path in the same manner without harm or injury. As he left the door of his place of business, he instinctively glanced at the sidewalk to assure his safety in walking, and his head was momentarily lowered immediately after he left his own place of business. Because of the short distance between the plaintiff's door and the awning rod, the fact that he had many times previously traversed with safety the same route over which he then traveled, and because he lowered his head momentarily to examine the sidewalk in front of him, he had insufficient time or opportunity to observe or see the awning in front of the defendant's store. On the previous occasions when the plaintiff had traversed the same route from his own place of business to the defendant's store, the lower side supporting rods of the awning on the north side had always been sufficiently high above the sidewalk to permit the plaintiff to walk under the same without danger of striking his head; but on the occasion when his head struck the awning rod, the awning and rods were in a much lower position than they had been previously.
What would an ordinarily prudent person have done under the same or similar circumstances as here disclosed? In other words, was the conduct of the plaintiff in going from his place of business to the defendant's store at the time in question and under the facts alleged that of an ordinarily prudent person, or does his petition affirmatively show that he could have avoided his injury caused by the defendant's alleged negligence, by the exercise of ordinary care? We think these are matters that should be determined by a jury, under the facts and circumstances.
Counsel for both sides cite numerous cases, pro and con, dealing with issues and facts somewhat similar to the question for decision in this case. But each case depends on its own peculiar facts and must be accordingly determined. It is contended by the plaintiff in error that the plaintiff walked out of his store in broad daylight and walked into or against the awning and injured himself, and that such injury was caused by failure on his part to exercise ordinary care for his own protection. The fact that the awning could have been seen does not render the petition subject to general demurrer under the facts alleged, on the theory as contended by the plaintiff in error.
The plaintiff did not know and had no reason to suspect that the awning in front of the defendant's store had dropped down to where he could not walk under it as he had done so many times before, and under the facts alleged it is a question for a jury to determine whether he could have discovered this in time to keep from bumping into it.
It was ruled in Wynne v. Southern Bell Tel. Co., 159 Ga. 623 (4) ( 126 S.E. 388), that "Where the owner or occupier of premises fails to exercise ordinary care in keeping reasonably safe such premises for the use of those who go upon them as invitees, and where such an invitee is injured by a patent defect in such premises of which the injured party has no actual knowledge, it can not be held as a matter of law that such injured party was lacking in ordinary care in failing to observe the defect in time to avoid the injury." This same ruling was quoted and applied in the case of Parsons v. Sears, Roebuck Co., 69 Ga. App. 11, 13 ( 24 S.E.2d 717). In City of Macon v. Stevens, 42 Ga. App. 419 ( 156 S.E. 718), a cannon was placed in a park immediately abutting a public sidewalk of the city with the barrel of the cannon projecting about eight feet over the sidewalk and at a height of about five feet above the sidewalk, the same constituting an obstruction dangerous to pedestrians using the sidewalk, and the plaintiff, while walking along the sidewalk, struck her head against the projecting barrel of the cannon, receiving an injury therefrom; it was held that the city was liable for the injury thus sustained if proximately caused by the negligence of the city in permitting the barrel of the cannon to project over the sidewalk, and not by the negligence of the person injured. Also, see Rogers v. Sears, Roebuck Co., 45 Ga. App. 772 (1) ( 166 S.E. 64); Tybee Amusement Co. v. Odum, 51 Ga. App. 1 ( 179 S.E. 415); Robertson v. Liggett Drug Co. Inc., 81 Ga. App. 850 ( 60 S.E.2d 268).
In the case of Nabors v. Atlanta Biltmore Corp., 77 Ga. App. 730 ( 49 S.E.2d 688), cited and relied on by the plaintiff in error, the plaintiff in a crouched position dragged a 300 lb. block of ice along the floor in the ice storage room of the hotel, which was lighted by an electric light hanging from the ceiling to about 5 1/2 feet from the floor, the light bulb being protected by a wire cage or screen, one side of which had sharp and jagged points of wire, and the plaintiff raised up under the light from his stooped position and struck his head against the screen over the light and injured his head as alleged. This court held that the trial court properly dismissed the petition on general demurrer in that case, under the facts alleged, and said, "The plaintiff went into the ice room which was lighted by an electric light suspended from the ceiling. The approximate height of this light from the floor, alleged to be about 5 1/2 feet, was obvious to the plaintiff, and no reason appears why the plaintiff could not have seen the broken wires of the cage or basket over the light, although he alleges that the broken cage was not discernible to him in coming into the room from the natural light of day outside."
Neither this case nor the other cases cited in the plaintiff in error's brief, including Lane Drug Stores Inc. v. Story, 72 Ga. App. 886 ( 35 S.E.2d 472), Ford v. S. A. Lynch Corp., 72 Ga. App. 481 ( 54 S.E.2d 320), and Brim v. Healey Real Estate c. Co., 56 Ga. App. 483 ( 193 S.E. 84), require a different ruling in the present case from the one here made. As above stated, each case must be construed and decided under its own particular facts. We are of the opinion, and so hold, that it does not affirmatively appear from the allegations of the plaintiff's petition that he could have avoided the injury to himself caused by the defendant's alleged negligence, by the exercise of ordinary care. It follows that the trial judge did not err in overruling the defendant's general demurrer.
Judgment affirmed. Felton and Worrill, JJ., concur.