DECIDED JANUARY 29, 1953. REHEARING DENIED FEBRUARY 13, 1953.
Action for damages; from Fulton Superior Court — Judge Pharr. October 22, 1952.
A. Paul Cadenhead, Nall Sterne, for plaintiff in error.
T. Elton Drake, John M. Williams, contra.
Where, as here, it appears that the plaintiff's injuries were sustained by her fall when she tripped against a large push cart in a self-service grocery store, the plaintiff not expecting to find her way obstructed, and accordingly walking down the aisle of the store with her vision obscured by a large sack of groceries which she was adjusting in her arms, the proximate cause of the plaintiff's injuries was her failure to exercise ordinary care for her own safety in looking ahead in the direction in which she was walking. Accordingly, a general demurrer to the petition was properly sustained.
DECIDED JANUARY 29, 1953 — REHEARING DENIED FEBRUARY 13, 1953.
Mrs. Nora Moore filed suit against The Kroger Company in the Superior Court of Fulton County for injuries she had received when she fell on the premises of the defendant, which she had entered as an invitee. Count one of the petition alleges that the defendant operates a self-service store; that customers of the store push about metal carts approximately three to four feet high and 18 inches wide while gathering up groceries, then bring such carts with groceries to a checking stand and, when the carts are emptied, an employee of the store removes them to their position near the "In" door, thus clearing the "Out" door for traffic; and that the plaintiff, after checking her purchases at the cash register, had to go through an aisle between the back of the checking stands and a metal safe of approximately two by three feet to get to the "Out" door, and had to make an abrupt left hand turn through the aisle in so doing. The petition continues: "11. At said time, and unknown to plaintiff there was located in the aisle between the checking stand and safe one of the aforesaid carts, and said cart obstructed said aisle. 12. As plaintiff was leaving the checking stand and making said left turn, she was in the process of adjusting the bag of groceries in her arms and her vision was momentarily obscured by said bag of groceries so that she did not at any time see the cart which was pushed against the safe. 13. As she passed by said safe, her foot hit the said cart, said cart tripping her and throwing her to the floor." Count two of the petition alleges that the push cart in question belonged to another customer rather than to the defendant. In both counts the alleged negligence is failure of the defendant's employees to keep the aisle clear for people using it, and in not discovering and removing the cart before the plaintiff's fall.
A general demurrer to the petition was sustained, and the exception is to this ruling.
It has been said times without number that questions of negligence are ordinarily for the jury, and that, where it is contended that the plaintiff's injuries were due to her own failure to exercise ordinary case, this is a jury question unless it is so plain and indisputable that the minds of reasonable men would not disagree upon the proposition. While this is unquestioned as a rule of law, its application to the facts of a particular case is not unattended by difficulty. It was, however, held as a matter of law in McMullan v. The Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420), that one emerging from another store of the same defendant, likewise holding a bag of groceries in front of him in such fashion as to obscure his vision, failed to exercise ordinary care for his own safety, and such failure was the proximate cause of his tripping and falling over an iron railing about five feet long and six inches high. The court held: "Under the law, the defendant is not bound to anticipate that its customers would so disregard their own safety as to obstruct their vision with packages or sacks so as to be unable to see where they were walking. If, as indicated by the allegations of the petition, the plaintiff were holding the sacks so that he could not see his intended path a reasonable distance ahead, consistent with due regard for his own safety, then he himself was the author of and responsible for his injury." Numerous cases are cited to the effect that where the obstruction is in some way hidden, camouflaged, or intrinsically unsafe, the question of ordinary care in the plaintiff is for the jury, but where it is perfectly obvious and apparent, so that one looking ahead would necessarily see it, the fact that the plaintiff merely failed to look will not relieve him from the responsibility for his misadventure. In Glover v. City Council of Augusta, 83 Ga. App. 314 ( 63 S.E.2d 422), cited by the plaintiff in error, it was held that the window display was for the purpose of attracting the attention of passer-by and diverting their attention, for which reason the defendant should have anticipated that an obstruction placed immediately under such window would be likely to go unnoticed by those approaching to examine the display. In Wynne v. Southern Bell Telephone Telegraph Co., 159 Ga. 623 ( 126 S.E. 388), also cited by the plaintiff in error, it was alleged that the defendant was negligent in constructing and maintaining a stairway with steel treads which left an opening at the back of each runner of such size that the plaintiff caught her heel in the aperture and tripped; and the court held that such allegations constituted a jury question as to whether one descending the steps would be likely in the exercise of ordinary care to be injured thereby. The plaintiff has cited on cases, and we know of none, where an object three or four feet tall, at or near a place where it may reasonably be expected to be, in broad daylight and in no way concealed, has been held the proximate cause of injuries to a plaintiff who did not see it solely because she obstructed her own vision in such manner that she could not look ahead.
The trial court properly sustained the general demurrer to the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.