Opinion
35959.
DECIDED FEBRUARY 8, 1956.
Action for damages. Before Judge Shaw. Fulton Superior Court. September 15, 1955.
Haas, White Douglas, George A. Haas, for plaintiff in error.
John L. Respess, Jr., F. L. Breen, contra.
The petition set forth a cause of action against the defendant and the trial court did not err in overruling the demurrers.
DECIDED FEBRUARY 8, 1956.
Mrs. Irma Barnett brought an action against the Young Women's Christian Association to recover for certain described personal injuries received, according to the petition, on March 3, 1955, when she slipped and fell in a cafeteria maintained and operated by the defendant, where it sold prepared food to its patrons and the public in general, at 72 Edgewood Avenue, N.E., Atlanta, Georgia. The petition, in addition to the above, alleged that on the date the plaintiff slipped and was injured the floor of the dining room of the cafeteria was covered with asphalt tile which the defendant had had heavily waxed and polished by its employees, agents, or servants so that it was extremely slippery and unsafe, and that the defendant knew or should have known of this condition. It was further alleged that on the above date the plaintiff entered the cafeteria maintained and operated by the defendant to purchase her lunch and that the described wax on the floor was "transparent and invisible and petitioner was therefore unable to observe same." After she had purchased her lunch and eaten it she proceeded to leave the cafeteria and walked from her table toward the table where the cashier was located near the exit, and slipped and fell over backwards on the described asphalt tile floor, and, as a result of the fall, received the injuries described in the petition. The defendant was charged with the following acts of negligence which it is alleged caused the defendant's injuries: "(a) In maintaining said floors in an extremely slippery condition at said time and place as aforesaid. (b) In using a slippery wax and polish on said floors at said time and place. (c) In failing to warn plaintiff of the slippery, unsafe condition of said floors before or at the time plaintiff entered said cafeteria. (d) In inviting plaintiff into said cafeteria while said floors were in a slippery and unsafe condition as aforesaid." The plaintiff prayed for process and service and judgment in the amount sued for.
The defendant filed general and special demurrers which were overruled by the trial court, and it is to this judgment that the defendant excepts.
1. The defendant demurred to the following portion of the petition as being a conclusion of the pleader and unsupported by pleaded facts: "and the aforesaid wax and polish was transparent and invisible and petitioner was therefore unable to observe same." Assuming but not deciding that the allegation "and petitioner was therefore unable to observe same" is a conclusion of the pleader, the allegation "and the aforesaid wax and polish was transparent and invisible" was an allegation of fact, and the ground of demurrer is therefore without merit.
2. The defendant demurred to the following allegations of the petition as being insufficient to show that the plaintiff was in the exercise of ordinary care at the time of receiving the injury complained of, "and petitioner was therefore unable to observe same."
"In an action for damages for the alleged negligence of the defendant in a case like the present, it is not necessary for the plaintiff to negative any negligence or want of ordinary care on her part. This is a matter of defense, and in such a case the petition in this respect will be good, unless from the averments made it affirmatively appears that the injuries were the result of the plaintiff's own negligence or failure to exercise ordinary care." Woolworth Co. v. Wood, 32 Ga. App. 575 (2) ( 124 S.E. 110).
3. The defendant contends that the allegations of the petition do not state a cause of action against it and therefore its general demurrer should have been sustained by the trial court and the petition dismissed. There have been many cases in Georgia where a person has slipped and fallen and the appellate courts have held that the petition was subject to general demurrer because it affirmatively appeared that the plaintiff was not in the exercise of ordinary care at the time of the fall. For discussions of some of these cases see Mattox v. Lambright, 31 Ga. App. 441 ( 120 S.E. 685); Macon Academy Music Co. v. Carter, 78 Ga. App. 37 ( 50 S.E.2d 626); Pilgreen v. Hanson, 89 Ga. App. 703 ( 81 S.E.2d 18). In the present case, however, it does not affirmatively appear that the plaintiff was not in the exercise of ordinary care at the time of the fall. "Questions as to diligence and negligence, including contributory negligence and what constitutes the proximate cause of an injury complained of, are peculiarly questions for the jury, and this court will not solve them on general demurrer unless they appear palpably clear." Mason v. Frankel, 49 Ga. App. 145 (2) ( 174 S.E. 546); Duren v. City of Thomasville, 92 Ga. App. 706, 708 ( 89 S.E.2d 840).
Accordingly, this ground of demurrer is without merit, since it does not appear palpably clear that the plaintiff's fall was due to her own negligence, and the trial court did not err in overruling the defendant's general demurrer to the petition.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.