Summary
In Lowe v. Atlanta Masonic Temple Co., 79 Ga. App. 575 (54 S.E.2d 677) (1949) various fraternal orders were tenants of the appellee property owner and the plaintiff came at the behest of the secretary of one of the tenants for business purposes; the dismissal of the complaint was held to be error as the plaintiff was entitled to the exercise of ordinary care on the part of the defendant.
Summary of this case from Davis v. Garden Services, Inc.Opinion
32513.
DECIDED JUNE 10, 1949. REHEARING DENIED JULY 11, 1949.
Action for damages; from Fulton Superior Court — Judge Hendrix. April 7, 1949.
MacDougald, Troutman, Sams Branch, McLennan Cook, L. F. Wynn, for plaintiff.
John M. Slaton, for defendant.
1. ( a) Where the petition of a plaintiff discloses that the defendant corporation is the owner of a building, the upper floors of which are rented to various fraternal orders, and the plaintiff is invited into the building by the secretary of one of such orders of which the plaintiff is a member, to carry out a legitimate business transaction with said order, such plaintiff is an invite on the premises of the defendant within the meaning of Code § 105-401. Macon Academy of Music Co. v. Carter, 78 Ga. App. 37 ( 50 S.E.2d 626).
( b) Where such petition also alleges that the plaintiff was expressly invited to come onto the premises of the defendant corporation at a particular time by the secretary of the fraternal order of which he is a member, said secretary being also a member of the board of directors of the defendant corporation with an office on the first floor of said building, the business of the defendant being to pick up articles of merchandise which he had purchased from the fraternal order of which he is a member, which articles of merchandise were located at a particular place on the premises, all of which was known to the defendant corporation through its said member of its board of directors and also through its agents and servants in charge of said building, an implied invitation by the defendant corporation is thereby shown to have been extended to the plaintiff, provided he did not go beyond that part of the premises to which, as the situation reasonably appeared to him, the invitation extended. See Jones v. Asa G. Candler Inc., 22 Ga. App. 717 ( 97 S.E. 112); Georgia Power Co. v. Sheats, 58 Ga. App. 730 ( 199 S.E. 582).
( c) "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." Code, § 105-401. This section also places upon the owner or occupier of land the duty to exercise ordinary care for the safety of invitees in discovering defects on the premises or instrumentalities thereon, and imposes a liability for injuries resulting from such defects as a reasonable inspection would disclose. Such owner or occupier of land is liable for failure to warn invitees of such dangers or defects in such premises or instrumentalities, of which such owner knew or in the exercise of ordinary care should have known. See Coffer v. Bradshaw, 46 Ga. App. 143 ( 167 S.E. 119); Tybee Amusement Co. v. Odum, 51 Ga. App. 1 ( 179 S.E. 415).
2. ( a) Where certain specified conduct is charged as a required degree of negligence in order to make the defendant liable, it is generally a question for the determination of the jury as to whether or not such conduct amounts to the degree of negligence charged. See Macon Telegraph Publishing Co. v. Garden, 79 Ga. App. 230 ( 53 S.E.2d 371); Southern Stages v. Clements, 71 Ga. App. 169 (2) ( 30 S.E.2d 429). It is always a jury question where the conduct charged and relied upon is such that different minds might reasonably draw different conclusions therefrom. See Macon Telegraph Publishing Co. v. Graden, supra; Jordan v. Lee, 51 Ga. App. 99 ( 179 S.E. 739); R. C. L. Vol. 22, Proximate Cause, Sec. 31, p. 148; Moody v. Gulf Ref. Co., 142 Tenn. 289 ( 218 S.W. 817; Teis v. Smuggler Min. Co., 158 Fed. 260; 15 L.R.A. (N.S.) 893; Pilmer v. Boise Traction Co., 14 Idaho 327 ( 94 P. 432, 15 L.R.A. (N.S.) 254, 125 Am. St. R. 161); Stone v. Boston c. R. Co., 171 Mass. 536 ( 51 N.E. 1); Huber v. LaCrosse City R. Co., 92 Wis. 636 ( 66 N.W. 708, 53 Am. St. R. 940, 31 L.R.A. 583). However, where such conduct is susceptible of but the one inference that it does not amount to the degree of negligence charged, a demurrer to the pleading so charging must be sustained. See Lester v. Foster, 40 Ga. App. 500 ( 150 S.E. 433); 45 C. J. S. § 852, p. 1279; Moody v. Gulf Ref. Co., supra; Clark v. Wallace, 51 Colo. 437 ( 118 P. 973, Ann. Cas. 1913 B, 349); Bass v. Southern Enterprises, 32 Ga. App. 399 (2) ( 123 S.E. 753); Macon Telegraph Publishing Co. v. Graden, supra.
( b) Also the question of whether or not certain specified conduct on the part of the plaintiff amounts to such contributory negligence as to preclude recovery, is likewise generally a question for the determination of the jury. See Camp v. Curry-Arrington Co., 41 Ga. App. 53 ( 151 S.E. 837); Morris v. Deraney, 68 Ga. App. 308 ( 22 S.E.2d 860).
DECIDED JUNE 10, 1949. REHEARING DENIED JULY 11, 1949.
The plaintiff in error, R. C. Lowe, herein referred to as the plaintiff, brought suit in the Superior Court of Fulton County, against the defendant in error, Atlanta Masonic Temple Co. Inc., herein referred to as the defendant.
The petition of the plaintiff alleges facts substantially as follows: that the defendant is the owner of a certain building in Atlanta; that the space on the upper floor of said building is rented to various fraternal orders; that the defendant maintains an electric passenger elevator in the building for use of its tenants including the fraternal orders and their members and other persons having business to transact with the tenants; that the secretary of the defendant corporation is in charge of the building and has an office on the first floor thereof; that the secretary of one of the fraternal orders which is a tenant of the defendant has an office on the first floor; that the plaintiff is a member of this fraternal order and that the secretary thereof is a member of the board of directors of the defendant corporation; that on November 25, 1946, the fraternal order aforementioned having recently purchased a large quantity of coca-colas in excess of its needs for a certain social function, disposed of a quantity thereof to the plaintiff through its secretary who notified the plaintiff that the coca-colas would be left for him on the floor of the elevator on the street level of the building, and that the plaintiff would find them there at about 4:30 p. m. on said date; that leaving coca-colas and other merchandise on the elevator in this manner so that the same might be picked up by the plaintiff and other similarly situated was well known to the secretary of the defendant corporation, to the aforementioned director, to the building superintendent and to the other employees of the defendant on the premises; that during the daytime the elevator was frequently left on the street-level floor with its lights off in order to save electric current; that the plaintiff and others in procuring merchandise left on the elevator for delivery to them would have to open the doors, step into the elevator and turn on the lights; that the plaintiff had on previous occasions seen others open the door to the elevator shaft from the outside when the elevator was standing at the street-floor level, and plaintiff thought the door could only be opened from the outside if the elevator was there; that on the occasion in question the coca-colas which had been purchased by the plaintiff were placed on the elevator floor for the plaintiff and, upon calling for them at about 4:30 p. m., the plaintiff opened the door to the elevator shaft and, upon stepping in, found the elevator gone and fell some 18 feet down the shaft resulting in serious injuries for which he sues, and that one of the employees of the defendant had moved the elevator prior thereto to some floor above the street level.
The petition also alleges that the defendant knew on the date when the petitioner was injured that the elevator door was insecure and inadequately fastened; that it could be opened from the outside whether the elevator was in place or not; that the plaintiff was coming to get coca-colas from the floor of the elevator that afternoon, and that he would expect to find the elevator at its usual place at the street level at that time of day. The defendant is alleged to be negligent in particulars as follows: (a) In moving said elevator from the first floor level after having full knowledge that the petitioner had been told to come by and pick up a case of coca-colas which he would find on the floor of the elevator at the street floor of the building, (b) in not warning petitioner that said elevator had been moved to an upper floor level, (c) in failing to post a notice or station an employee at the elevator shaft on the first floor to warn the petitioner, knowing that he would come to pick up the coca-colas and expect to find them in the elevator at the first floor, and knowing that the latch on the door to the elevator shaft was faulty and could be opened from the outside although the elevator was not at that floor level, (d) in permitting the only latch on the door to the elevator shaft at the first floor to become worn, loose and defective so that the door could be opened from the outside even though the elevator was not present at that floor level, (e) in failing to keep the elevator shaft sufficiently lighted to show whether said elevator was or was not at the street floor level, (f) in maintaining a door of glass which reflected the overhead and other lights from the lobby and hallway and prevented the petitioner from ascertaining whether the elevator was at the street floor level without opening the door to the shaft, (g) in permitting the condition herein above described to exist and in continuing to maintain the pitfall and trap in its building created by an unlighted elevator and unlighted elevator shaft, a faulty latch on the elevator door which could be easily manipulated and opened from the outside and in maintaining overhead lights in the lobby and hallway of the building which in combination with the glass door caused such a mirrored effect that the petitioner, in the exercise of ordinary care could not see into said elevator shaft and tell whether or not the elevator was actually at the street-floor level.
The defendant filed a general demurrer on grounds as follows:
(1) The same sets forth no cause of action, (2) the declaration shows that the plaintiff was injured through failure to exercise ordinary care on his part, (3) the declaration shows that the plaintiff was not entitled to any care except not to hurt him intentionally, (4) the declaration shows that the defendant was under no obligation to the plaintiff in regard to said elevator, (5) the declaration shows that the defendant had nothing to do with any coca-cola which was to be purchased from any tenant, or tenants, of the defendant.
The exception is to the judgment of the trial court sustaining each of these grounds of the defendant's demurrer and dismissing the plaintiff's petition.
1. According to the petition, when the plaintiff came onto the premises of the defendant corporation, he was invited by the secretary of the order of which he was a member, the same being a tenant of the defendant corporation. He was expected by the same man as a member of the board of directors of the defendant corporation, and the practice and custom of using the elevator floor at the street level as the place for storing articles to be picked up by the plaintiff and others similarly situated had long been known to and participated in by the superintendent in charge of the building and the other employees of the defendant on the premises, including the man who moved the elevator on this occasion. These allegations, together with the one that the same practice and custom included that of the plaintiff and others similarly situated going to the elevator and opening the door to get the articles of merchandise therefrom, constituted the plaintiff an invitee by implication of the defendant corporation, and the plaintiff, in opening the door of the elevator shaft for the purpose of entering the elevator to get his coca-colas, did not go beyond that part of the premises to which, as the situation reasonably appeared to him, the invitation extended. It follows, therefore, that the defendant is liable in damages to the plaintiff in the instant case if he failed to exercise ordinary care in keeping the premises and approaches safe for the plaintiff, and provided the plaintiff was not guilty of such contributory negligence as to bar his recovery. The authorities cited in headnote 1 (a), (b), and (c), are ample to support this statement and this headnote and its subdivisions require no further elaboration.
2. One of the acts of negligence charged against the defendant is the violation of a city ordinance providing that electric passenger elevators not equipped with hoist-way door locks and electric contacts shall be equipped with inner locks. The allegations of the petition are that the elevator shaft at the first floor was equipped with a door that could be opened from the outside even though the elevator was not present at that floor level because the latch on the door had become worn, loose and defective. The petition is silent about what kind of door was on the elevator itself. This question is immaterial, anyway, because the elevator was not on the floor from which the plaintiff fell and the kind of doors with which it may have been equipped could have in no way contributed to the fall. The petition therefore alleges no actionable negligence per se.
The conduct of the defendant corporation, through its officers, agents and servants, consisting of alleged acts of omission and commission, and contended to constitute such negligence as amounts to the lack of exercise of ordinary care in keeping the premises safe for the plaintiff must be measured in the light of whether or not different minds might reasonably draw different conclusions on this issue. The same is true as to whether or not the plaintiff was guilty of such contributory negligence as amounted to the lack of exercise of ordinary care for his own safety, and thus bar recovery. If reasonable minds might differ, it is a jury question (see cases cited in headnote 2 (a)). On the other hand, if such conduct is susceptible of but the one inference that it does not amount to the degree of negligence charged, the demurrer to the petition should have been sustained. See cases cited in support of this proposition in headnote 2 (a).
The same rules apply in measuring the conduct of the plaintiff to determine whether it amounts to the exercise of ordinary care for his own safety, or whether it amounts to such contributory negligence as to bar his recovery. See Macon Telegraph Publishing Co. v. Graden, supra.
Counsel for both sides have submitted excellent briefs in support of their contentions which are exhaustive on the subjects under discussion including this one. Many of the cases cited by each side appear to be in point and conclusive of the questions here in favor of the side of counsel citing them. After thorough study of all the cases cited by counsel for both sides it becomes more and more apparent that in reviewing the cases on the subject of liability for injuries to invitees on the premises of others, that each case rests on its own peculiar facts. This is more or less true as to all negligence cases and is especially applicable to actions based on Code § 105-401 and seems to apply with peculiar particularity to elevator cases such as the one now under consideration.
However, in this connection it is well to remember, that it is only in a plain indisputable case that the court is authorized to determine questions of negligence. See Streetman v. Bussey, 25 Ga. App. 694 ( 104 S.E. 517). Here, considering the instant case on its own facts, we find that according to the allegations of the petition of the plaintiff, the defendant was expecting the plaintiff or someone similarly situated to come onto the premises at the time the plaintiff came; that he was expected by the agents and servants of the defendant to enter the elevator to get his coca-colas; they knew that the elevator shaft and elevator were dark and that upon opening the doors to the shaft it could not be determined by sight whether or not the elevator was at that level; they knew that the doors could be opened by anyone when the elevator was not in place, although the plaintiff thought that, when the doors could be opened, the elevator was there; the elevator was used but little during the day and at the time when the plaintiff came by for his coca-colas; officers, agents and servants of the defendant had participated in establishing the custom of using the elevator floor as the delivery room for coca-colas and other parcels to be delivered by its tenants to the plaintiff and others similarly situated, and the employee of the defendant who moved the elevator on the occasion in question is alleged to have had all this knowledge and notice at the time the elevator was moved by him. With all this knowledge and notice on the part of the officers, agents and servants of the defendant, it is charged that they were negligent in moving the elevator, in not warning the plaintiff that the elevator was not there, in not warning the plaintiff that the door to the elevator shaft was defective, in failing to keep the elevator shaft lighted, and in other ways.
We are not prepared to say that the defendant is, as a matter of law, not guilty of such negligence as would authorize a recovery in this case, nor can we say that the plaintiff was guilty of such contributory negligence as would amount to lack of the exercise of ordinary care for his own safety, and thus bar his recovery. We think the cases nearest in point are Camp v. Curry-Arrington Co., 41 Ga. App. 53, and Morris v. Deraney, 68 Ga. App. 308 (supra). In the former, the plaintiff was injured while undertaking to deliver ice into the basement of the building by means of the elevator. When the ice truck arrived at the building, the elevator was at the basement level. While the plaintiff delivered a small piece of ice to a barbershop across the street, his helper went to the basement and moved the elevator to the first floor level. He then returned to the ice truck, from which he and the plaintiff unloaded a large block of ice, which the plaintiff, with a pair of ice hooks, dragged across the room toward the elevator, which he understood to be still in place at the first floor level where it had been left by his helper. However, in the meantime, without the plaintiff's knowledge, some person had moved the elevator to another level without closing the door to the shaft. The shaft being located at a place where there was but little light, the plaintiff, in attempting to drag the ice across the floor onto the elevator, was precipitated through the shaft to the bottom of the basement and seriously injured. In holding there that issues of fact were involved which should have been submitted to the jury, both as to negligence of the defendant and as to the want of care on the part of the plaintiff, this court reversed the case because the trial court awarded a nonsuit. It is true that in that case the plaintiff was doing business directly with the owner and occupier of the building and the invitation was therefore express rather than implied. However, the degree of care required of the owner or occupier of the premises in each instance is the same whether the invitation be express or implied. In both instances the invitee is expected. The Camp case is more in point on the question of whether or not the plaintiff was in the exercise of ordinary care and this was also held to be a question for the jury. See Wynne v. So. Bell Tel. c. Co., 159 Ga. 623 (2) ( 126 S.E. 383); Collins v. Augusta-Aiken Ry. c. Co., 13 Ga. App. 124 (2) ( 78 S.E. 944).
The allegations as to the full knowledge of the officers, agents and servants of the defendant that the plaintiff was to call for the coca-colas which were to be located on the floor of the elevator at the street level and the custom and practice of those using the elevator as the delivery place for articles of merchandise, together with the allegation that the elevator in the day-time would be frequently left standing at the ground floor of the building, would, upon being established by evidence, authorize the jury to find that the plaintiff was warranted in assuming that the elevator would be there. However, in Peniston v. Newnan Hospital, 40 Ga. App. 367 ( 149 S.E. 715), relied upon by counsel for the defendant, such assumption was not warranted. In that case the doctor who was injured maintained an X-ray machine on the second floor of the hospital for the treatment of his own patients, and regularly operated the automatic elevator for the purpose of transporting them to and from the X-ray machine. The elevator was frequently used in the daytime by others. He was injured during the afternoon at a time when he knew the elevator was likely to be in constant use. He had come to the second floor and had brought the elevator down to the first floor just before he was injured. He had left the door unlatched and temporarily turned away from it. In the meantime someone else moved the elevator. As he turned back to step into the elevator himself, he was not looking in that direction, but was engaged in a conversation with others. Thus he stepped into the open shaft and was injured. The court sustained the general demurrer and dismissed the petition, but the facts in that case distinguish themselves from the facts in the instant case, as do all the decisions relied upon by counsel for the defendant.
We think that the petition in the instant case sets forth a cause of action and that the trial court erred in sustaining the demurrer and dismissing the action.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.