Opinion
43213.
SUBMITTED NOVEMBER 7, 1967.
DECIDED NOVEMBER 28, 1967.
Action for damages. Fulton Superior Court. Before Judge Etheridge.
Smith, Cohen, Ringel, Kohler, Martin Lowe, William T. Johnson, for appellant.
Shulman Alembik, Arnold Shulman, for appellee.
The defendant appeals from the judgment of the trial court overruling its motion for summary judgment. The petition alleged that the plaintiff was injured when he attempted to step over a timber, placed by the defendant as a lane divider in its parking lot, and his shoe heel caught on a metal spike protruding from the top of the timber. It alleged essentially that the defendant was negligent in maintaining the 4 x 4 timber in an unsafe and defective condition, warped and raised, and with the metal spike protruding an inch from the top. The plaintiff's deposition shows that his heel caught somewhere on the divider but he did not know where and did not know whether he tripped on the wood or on a spike. The photographic evidence shows that the divider was so placed that the plaintiff could have left his parked automobile without stepping over the divider.
It is established that the maintenance of a divider such as that described in this case does not in itself constitute negligence. McHugh v. Trust Co. of Ga., 102 Ga. App. 412 ( 116 S.E.2d 512); Sanders v. Jefferson Furn. Co., 111 Ga. App. 59 ( 140 S.E.2d 550); cf. Johnson v. Thompson, 111 Ga. App. 654, 656 ( 143 S.E.2d 51). The plaintiff's testimony does not show an issue of fact as to whether the alleged warped and raised condition of the divider, or the alleged spike protruding therefrom caused or contributed to the plaintiff's falling.
The trial court erred in overruling the defendant's motion for summary judgment.
Judgment reversed. Felton, C. J., and Eberhardt, J., concur.