Opinion
35500.
DECIDED FEBRUARY 9, 1955.
Action for damages. Before Judge Hendrix. Fulton Superior Court. October 26, 1954.
A. Paul Cadenhead, Nall, Sterne, Miller, Cadenhead Dennis, for plaintiff in error.
William P. Holley, Jr., contra.
The reasonable inference from the allegations of the petition is that the obstruction was such as could have been seen by the plaintiff in the exercise of ordinary care for her own safety. It follows that the alleged injury was the result of the failure on the part of the plaintiff to exercise such degree of care for her own safety as would have been necessary to avoid the injury.
DECIDED FEBRUARY 9, 1955.
Mrs. Alice V. South (hereinafter called the plaintiff), brought suit for damages against Rich's, Inc. (hereinafter called the defendant), alleging substantially: that she entered the department store of the defendant as its customer, for the purpose of carrying on the usual business which might be carried on by a customer of the defendant; that the defendant, through its agents and employees, was remodeling one of the stairways to the mezzanine; that, after said employees concluded their work on the stairs for that day, they stacked boards adjacent to the stairway and in the aisle running along beside the stairway; that one timber from the stack of boards extended twelve to fifteen inches into the said aisle; that there was a sign stating that the stairway was not to be used, but the area was not roped off; that she was advised by some man standing near, who was unknown to her, to use the stairway under the mezzanine; that, as she started to walk down the aisle in the direction of the other stairway, her right foot struck the aforesaid board which extended out into the aisle; that the board was three inches above floor level and approximately one-half inch thick; that, as she "walked down the aisle, her attention was attracted to the area beneath the mezzanine and for that reason she had not observed the timber"; that the protruding timber caused her to fall and injure herself in the particulars alleged; and that she was in the exercise of ordinary care, but could not avoid tripping and falling. The specific allegations of negligence were substantially, that the defendant was negligent in permitting the piece of timber to protrude; in failing to rope off the area or otherwise warn plaintiff that the piece of timber protruded; in failing to keep the aisle safe for passage; and in failing to provide a safe place to walk.
The defendant filed a general demurrer on the ground that the petition failed to allege a cause of action, and further on the ground that the petition showed on its face that the plaintiff was not in the exercise of ordinary care for her own safety.
The plaintiff amended her petition by striking therefrom the allegation that she was looking up under the mezzanine and therefore did not see the timber.
The court entered an order overruling the defendant's general demurrer, to which order the defendant excepted and brings the case here for review. Counsel for both parties agree that the only issue presented for review is whether the plaintiff, as a matter of law, failed to exercise ordinary care for her own safety.
Counsel for both parties make the statement that the general rule of law is recognized to the effect that negligence, contributory negligence, proximate cause, and failure to exercise care for one's own safety are generally questions of fact to be determined by the jury. And further, that there are some instances in which this question must be determined as a matter of law. Then counsel for both parties cite in support of this principle Tinley v. F. W. Woolworth Co., 70 Ga. App. 390 ( 28 S.E.2d 322). In that case the court said: "It should be borne in mind that the merchant, the occupier of the building, is not an insurer. As has been said in one case, `What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good businessman is in such matters accustomed to use.' McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 340 ( 15 S.E.2d 797)." We concede that the principle of law is correctly stated. In McMullan v. Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420), cited by counsel for both parties, this court, in affirming the sustaining of a general demurrer to the petition involved, said: "Whether the structure was dangerous depends largely on whether the structure was such as would not necessarily be seen by the plaintiff in the exercise of ordinary care. The structure was on the surface, not hidden, and could easily have been seen by the plaintiff had he been exercising ordinary care in observing where he was walking. . . The only reasonable inference from the allegations of the petition is that the structure was such as could have been seen by the plaintiff in the exercise of ordinary care, and that the alleged injury was the result of the failure on the part of the plaintiff to exercise such degree of care for his own safety." In that case a customer stumbled over a concrete bar 3 1/2" to 6" high.
As will be noted from the case of Miller v. Bart, 90 Ga. App. 755 ( 84 S.E.2d 127), the operator of a filling station was talking to the injured person immediately before the mishap; the automobile had been placed so that there was a question as to whether or not the customer could have reasonably noticed the jack; the automobile was placed there while the customer was in the station paying a bill — in fact, there were circumstances from which one could infer lack of ordinary care on the part of the filling station operator, and also on the part of the customer. Thus the case was properly remanded to a jury for determination. In the instant case, the circumstances are not complicated, and it seems clear to us that the customer of the defendant could have easily foreseen the injury by the use of ordinary care for her own safety.
The trial court sustained the general demurrer, and the Court of Appeals held that the ruling was correct, that the alleged injury was the result of the failure on the part of the injured party to exercise due care for his own safety. We do not feel that Miller v. Bart, supra, is analogous to the instant case. In the Miller case the attention of the injured person was being diverted by the operator of the filling station, and further, the jack over which the customer stepped was concealed by an automobile. The case was remanded to a jury to determine whether or not the customer could have avoided the injuries by the exercise of ordinary care. There the petition did not show as a matter of law that the plaintiff had reason to apprehend the existence of the defendant's lack of ordinary care, and thus could have avoided her resulting injuries by the exercise of ordinary care for her own safety.
In the instant case, as in National Bellas-Hess Co. v. Patrick, 49 Ga. App. 280 ( 175 S.E. 255), there is nothing to indicate that the injured party could not have observed the obstruction. The National Bellas-Hess Company case (which went to a jury) was reversed by this court because the trial judge abused his discretion in granting a new trial — the instant case is here on general demurrer.
The trial court erred in overruling the general demurrer.
Judgment reversed. Townsend and Carlisle, JJ., concur.