Summary
In Shannon v. Bigelow-Sanford Carpet Co. (1957), 96 Ga. App. 458, 100 S.E.2d 478, the entrance to the defendant's place of business consisted of a solid glass panel and a solid glass door framed by metal strips which gave the appearance of being two double glass doors.
Summary of this case from Mattox v. Motel Investment Co.Opinion
36811.
DECIDED OCTOBER 4, 1957.
Tort; injuries to invitee, demurrer. Before Judge Espy. Chattooga City Court. May 15, 1957.
A. Cecil Palmour, for plaintiff in error.
Matthews, Maddox, Walton Smith, Oscar M. Smith, contra.
The petition set out a cause of action and the trial court erred in sustaining the general demurrer.
DECIDED OCTOBER 4, 1957.
E. P. Shannon sued Bigelow-Sanford Carpet Company, Inc., for damages on account of personal injuries. His petition made substantially the following case: On the morning of November 2, 1956, the plaintiff was transacting business with the defendant in its offices at Summerville, Georgia, and was talking with one of the defendant's employees whose name is unknown to the plaintiff, but whose desk in said office was nearest the entrance thereof; "3. The entrance to said office consists of what appear to be double glass doors whose stiles and rails consist of metal strips approximately two inches wide. There is actually only one door, and the other fixture adjoining it which appears to be another door, is merely a plate-glass panel framed by said metal strips. All of said metal strips which support said door and glass panel appear to be of steel or aluminum, and to be of great strength. 4. After conversing with said employee a few minutes, plaintiff turned to leave by way of the above-described entrance, through which he had come. He reached said door and raised his hand to push it open, when said employee called to him and asked him another question. This diverted plaintiff's attention from the door so that his hand pressed against that part of the metal frame of the above-described plate glass panel alongside the swinging stile of the door, instead of the swinging stile of the glass door as he had intended. The pressure of his hand against said frame was very gentle, and he was at the same instant turning to face said employee. The said door swung outwardly. 5. Immediately upon his pressing against said metal strip, the upper portion of the glass paneling which it enclosed shattered and fell, and sharp pieces of broken plate glass fell from said panel and inflicted" the injuries complained of.
The plaintiff alleged that the defendant was negligent in that it failed to provide an entrance to its offices which was safe for the plaintiff and other invitees; in that it failed to provide a frame for the door which was the entrance to its office and which was safe for usual and ordinary use by the plaintiff and other invitees and persons known to be on said premises; in that it maintained the glass panel in the metal frame adjacent to the door too loosely and insecurely in said frame for safety in normal and reasonable use; in that the vertical part of the metal frame of the said paneling was too weak for reasonable and normal usage connected with the entrance which condition could have been discovered by the defendant by casual ordinary inspection; that the defendant's employee was negligent in diverting the plaintiff's attention, thus causing him to push against the weak and insufficient metal frame instead of the stile of the glass door; that by maintaining the entrance of the appearance described in the petition the defendant entrapped the plaintiff into an assumption that either installation was a door which could have been used in safety; that it failed to make ordinary or casual inspection of the entrance to discover defects therein; and, that it failed to warn the plaintiff of such defects, and the plaintiff alleged that these acts of negligence each combined with the other as the sole, direct and proximate cause of his injuries and damages. He then set forth facts alleging and showing the damages sustained by him as the result of the injuries and prayed for a judgment in the amount of $1,111.
The defendant filed a general demurrer in which it contended that the petition failed to set forth a cause of action and that the petition affirmatively showed on its face that the sole proximate cause of the plaintiff's injuries was his failure to exercise ordinary care. The trial court sustained these demurrers and dismissed the petition and the exception here is to that judgment.
While a petition must be construed on general demurrer most strongly against the plaintiff, this rule of construction is applicable only where the allegations are ambiguous and open to construction. Wolf v. Arant, 88 Ga. App. 568, 570 ( 77 S.E.2d 116). A rule which is equally as well established as the foregoing is that on general demurrer the facts alleged in the petition must be taken as true, and unless an inference of contributory negligence on the part of the plaintiff is demanded, that question is one for the jury. Doby v. W. L. Florence Construction Co., 71 Ga. App. 888, 889 (5) ( 32 S.E.2d 527). This last rule is but a branch of the broad general rule to the effect that questions of diligence and negligence, including contributory negligence, are questions peculiarly for the jury and they ought not to be decided on general demurrer except in plain, palpable and indisputable cases. De Golian v. Faulkner, 74 Ga. App. 866, 869 ( 41 S.E.2d 661); Atlanta W. P. R. Co. v. McDonald, 88 Ga. App. 515, 519 ( 76 S.E.2d 825). The allegations in the instant petition are not ambiguous and there is no question that the plaintiff was, under the facts alleged, and as against a general demurrer, an invitee of the defendant. Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 ( 116 S.E. 17); Coffer v. Bradshaw, 46 Ga. App. 143 (6) ( 167 S.E. 119).
Where the owner or occupier of land by express or implied invitation induces or leads others to come on his premises for any lawful purpose, he is liable in damages to such person for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145 ( 4 S.E. 759, 12 Am. St. R. 244); Central R. Bkg. Co. v. Robertson, 95 Ga. 430 ( 22 S.E. 551); Archer v. Blalock, 97 Ga. 719 ( 25 S.E. 391); Mandeville Mills v. Dale, 2 Ga. App. 607 ( 58 S.E. 1060); Rollestone v. Cassirer Co., 3 Ga. App. 161 ( 59 S.E. 442); Bass v. Southern Enterprises Inc., 32 Ga. App. 399 ( 123 S.E. 753). The owner of land owes a duty to an invitee to protect him against injury, and he must keep the premises free from pitfalls and mantraps ( Mandeville Mills v. Dale, supra; Rollestone v. Cassirer Co., supra); and the owner of premises is liable for injuries resulting from dangerous conditions existing on the premises ( Southern Paramount Pictures Co. v. Gaulding, 24 Ga. App. 478, 101 S.E. 311; Crossgrove v. A. C. L. R. Co., 30 Ga. App. 462, 118 S.E. 694; Cuthbert v. Schofield, 35 Ga. App. 443, 133 S.E. 303; Wynne v. Southern Bell Telephone c. Co., 159 Ga. 623, 126 S.E. 388); or from injuries received as a result of defective construction ( Ross v. Jackson, 123 Ga. 657, 51 S.E. 578). Constructive knowledge of any defect causing an injury is sufficient to charge the defendant with liability therefor. Atlanta Paper Co. v. Sigmon, 82 Ga. App. 730, 733 ( 62 S.E.2d 363). A slight deviation by the plaintiff from the exact route that he would ordinarily take in entering on or leaving the defendant's premises does not render the invitee a trespasser nor relieve the defendant from its duty to protect him from hidden danger ( Smith v. Seawright, 33 Ga. App. 336, 126 S.E. 301; Greenfield v. Watson, 54 Ga. App. 9, 187 S.E. 183); and the duty of the plaintiff to exercise ordinary care to avoid the consequences of the defendant's negligence does not arise until he becomes aware of such negligence or in the exercise of ordinary care should have become aware of it. Western Atlantic R. Co. v. Ferguson, 113 Ga. 708 ( 39 S.E. 306, 54 L.R.A. 802).
Under the allegations of the petition in this case, the plaintiff was an invitee at a place on the defendant's premises where he had a perfect right, and should have been expected by the defendant, to be. We cannot say as a matter of law under the rules of law above stated that the plaintiff in placing his hand on the frame of the glass panel and gently pressing thereon was guilty of such contributory negligence in so doing as to be barred from a recovery. In the absence of a special demurrer calling for more particular and detailed averments, the negligence of the defendant was sufficiently set out in the petition. Paraphrasing the language used by Justice Lumpkin in Mayor c. of Jackson v. Boone, 93 Ga. 662, 665 ( 20 S.E. 46), it is almost human nature for a person passing in or out of a doorway to place his hand on the facing or the frame thereof and to perhaps lean on it or exert some gentle pressure thereon while pausing to engage in conversation, and while we do not mean to say that in every instance where one is injured as the result of such action he would be entitled to recover, certainly under the facts alleged in this petition it was a jury question as to whether the plaintiff ought to recover.
Under the allegations of the petition, the defendant, being the owner and in possession of the building of which the defective appurtenance was a part, was in a better position than the plaintiff to have notice of the defect, and under its duty to make a reasonable inspection it should have discovered the alleged defect. On the other hand the plaintiff was under no duty to inspect the premises, and at most had the duty to observe them in passing to and fro. He alleged that, to the casual observer, the structure surrounding the glass panel gave the appearance of having great strength. Under the allegations he was entitled to rely on the defendant not to entrap him with a structure adjoining his route of passage so defective that it collapsed when gentle pressure was applied to it by him with his hand.
The trial court erred in sustaining the general demurrer and in dismissing the petition.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.