In Redding v. Sinclair Refining Co., 105 Ga. App. 375 (124 S.E.2d 688) we find a most interesting discussion with numerous citations.Summary of this case from Gray v. Delta Air Lines, Inc.
DECIDED JANUARY 26, 1962. REHEARING DENIED FEBRUARY 15, 1962.
Actions for damages. Colquitt Superior Court. Before Judge Lilly.
Whelchel Whelchel, James C. Whelchel, Emory M. Hiers, for plaintiffs in error.
Perry, Walters Langstaff, Jesse W. Walters, Moore Moore, R. Lamar Moore, contra.
1. The petitions in these cases allege actionable negligence in placing a metal sign with inconspicuous supports slightly raised above the sidewalk in such manner that the supports partially enclosed the area surrounding a parking meter and at a place where the erection of signs was prohibited by city ordinance, upon the inconspicuous supports of which sign the plaintiff tripped and fell, sustaining serious injuries.
2. Whether the plaintiff was guilty of contributory negligence barring recovery is a jury question under the facts alleged in this petition.
DECIDED JANUARY 26, 1962 — REHEARING DENIED FEBRUARY 15, 1962.
The plaintiffs, husband and wife, filed their actions in the Superior Court of Colquitt County for damages resulting from personal injuries to the wife. Negligence is alleged in each case against the corporate defendant as lessee and supervisor of, and the individual defendants as managers of a filling station based on the following alleged facts: on the south side of the service station lot there is a sidewalk, the west 25 feet of which are incorporated in a driveway into the station; on the south side of this sidewalk about 3 1/2 feet east of the driveway is a parking meter regulating a parking space immediately to the south. Defendants placed an advertising sign rack about one foot northwest of the parking meter, which rack also had a sign stand about 3 1/2 feet high and 2 1/2 feet wide and had attached to it a metal frame 3 feet high and 2 feet wide held within the framework of the sign rack in which advertising matter was placed; there were two pieces of metal to which the sides of the sign rack were attached serving as feet or supports, which feet were approximately 42 inches long, 4" high at the center where the sign rack was attached, and about 1 1/2" above the sidewalk at the ends. The bottom metal pieces, protruding at right angles from the sign were a gray color which blended with the color of the paved sidewalk making them difficult to distinguish, and were also of practically the same color as the parking meter, for which reason plaintiff failed to see them. When the plaintiff alighted from the car on the south side of the parking meter it was necessary for her to go to the north side of the meter in order to read it and place her coin in it; until she reached the northwest side the parking meter was between her and the sign rack, at which point the feet of the sign rack were under her and in close proximity to her feet which prevented her from noticing the protruding feet; her attention was distracted from the base of the sign by the act of placing money in the meter; the north and west sides of the parking meter were enclosed by the feet of the sign rack, and the plaintiff, after depositing the coin, turned to her right to leave the meter whereupon her left foot struck one of the metal feet extending out approximately 21" from the rack, causing her to trip and fall, fracturing her hip and sustaining other severe injuries. Negligence is alleged in placing the rack at the side of the parking meter, using in such location a rack with long pieces of metal for feet which were raised slightly above and were dangerous to people using the area, failing to have any guardrail or other warning if the rack was to be left in that position to keep persons such as plaintiff from tripping and falling, and also in placing the sign on the sidewalk in violation of a valid and subsisting ordinance of the city.
The defendants' general demurrers were sustained and the petitions dismissed.
1. The municipal ordinance attached to the petition prohibits the erection of signs except those parallel with the face or side of the building and not extending over 18 inches from the building and then only after a permit for such sign is obtained. The sign and sign rack in question were placed on a public sidewalk, the base supports being within a foot of the parking meter in an area where it was necessary for persons to be in order to use the meter, and without a permit allowing such use of the sidewalk. The petitions are sufficient as against demurrer to show actionable negligence against all the defendants, it being alleged that the individual defendants so placed the sign and that they did so in conjunction with and under the supervision of agents of the corporate defendant.
2. It is contended, however, that the obstruction was obvious, that there is no reason why the plaintiff should not have seen it, and that her injuries were patently the result of her failure to exercise ordinary care for her own safety. In Rothschild v. First Nat. Bank of Atlanta, 54 Ga. App. 486 ( 188 S.E. 301), the court in discussing when the question of whether the plaintiff is in the exercise of ordinary care for his own safety may be decided by the court as a matter of law, observed: "In deciding a question of this character, the fact is forced upon us from the many cases we have examined, and the variety of judicial conclusions reached upon similar states of facts, that precedents are of little value, but each case must stand on its own facts. There can be no doubt that it is a difficult problem for a court to declare as a matter of law that one is negligent or lacking in ordinary care for his own safety." The general rule is that, where the minds of reasonable men may disagree as to the factum of negligence, or of whose negligence caused the injury, the jury and not the court is the proper instrument to evaluate the facts, and draw the proper conclusion. Georgia Power Co. v. Blum, 80 Ga. App. 618 ( 57 S.E.2d 18). The plaintiff need not negative the defense of contributory negligence in her petition, and it will not be dismissed on demurrer for this reason unless the petition affirmatively discloses facts demanding such conclusion as a matter of law. Central Georgia Electric Membership Corp. v. Heath, 60 Ga. App. 649 ( 4 S.E.2d 700); Minnick v. Jackson, 64 Ga. App. 554 ( 13 S.E.2d 891). Young Women's Christian Assn. v. Barnett, 93 Ga. App. 322 ( 91 S.E.2d 381). In many cases where the plaintiff fell over or ran into an otherwise obvious defect or obstacle, the matter of contributory negligence was held to be a jury question because of allegations explaining that the obstacle was difficult to see because it blended in color with the ground or floor upon which it was resting or was otherwise obscured. See Kitchens v. Davis, 96 Ga. App. 30 ( 99 S.E.2d 266); Spindel v. Gulf Oil Corp., 100 Ga. App. 323 ( 111 S.E.2d 160); Moore v. Sears, Roebuck Co., 42 Ga. App. 658 ( 157 S.E. 106); Fuller v. Louis Steyerman Sons, 46 Ga. App. 830 ( 169 S.E. 508); Smith v. Swann, 73 Ga. App. 144 ( 35 S.E.2d 787); DeLay v. Rich's, Inc., 86 Ga. App. 30 ( 70 S.E.2d 546); Pilgreen v. Hanson, 89 Ga. App. 703 ( 81 S.E.2d 18); Whitsett v. Hester-Bowman Enterprises, 94 Ga. App. 78 ( 93 S.E.2d 788); Starr v. Emory University, 93 Ga. App. 864 ( 93 S.E.2d 399). Also, there are facts which may be pleaded by the plaintiff to excuse her from exercising that degree of care under the circumstances which the law would otherwise hold to be necessary in an ordinarily prudent person. The doctrine that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril is well recognized. From this stems the rule that a lesser degree of prudence may be sufficient to constitute ordinary care where there are circumstances causing stress or excitement. City of Rome v. Phillips, 37 Ga. App. 299 (2) ( 139 S.E. 828). The doctrine is further broadened to cover situations where the plaintiff's attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur. Glover v. City Council of Augusta, 83 Ga. App. 314 ( 63 S.E.2d 422) held a petition good as against general demurrer under very similar circumstances. There a parking sign was placed directly under a store window especially decorated for the purpose of attracting and holding the attention of passers-by "in such a place that a person observing the contents of the window would necessarily trip against it unless an effort was made to locate and avoid hitting it, [which] is far less likely to be actually noticed than in almost any other position on a street or sidewalk." On the other hand, recovery was denied in McMullen v. Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420), where a woman carrying a bag of groceries stumbled over an obstruction in a store, and in Moore v. Kroger Co., 87 Ga. App. 581 ( 74 S.E.2d 481), where the same situation existed, the McMullen case was followed. One valid line of distinction existing in the so-called "distraction" cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence. Where the distraction comes from without, and is of such nature as naturally to divert the plaintiff, and also of such nature that the defendant might naturally have anticipated it, the result is different. Glover v. City Council of Augusta, 83 Ga. App. 314, supra, was held to state a cause of action because of the fact that the show window though static, was nevertheless a distraction for which the defendant was responsible. The case did not turn on the distraction created by the remark of the husband, as so ably argued by counsel for defendant in error. See in this connection Judge Townsend's explanation of the Glover case in Moore v. Kroger Co., 87 Ga. App. 581, supra. A cause of action was stated in Miller v. Bart, 90 Ga. App. 755 ( 84 S.E.2d 127), where a woman coming out of the office of a filling station went around a parked car and tripped over a jack obviously protruding from the rear thereof into her path, her attention being directed to the conversation of the proprietor. In Yancey v. Southern Ry. Co., 99 Ga. App. 493 ( 109 S.E.2d 300) a pedestrian-crossing at a railroad track contained loose gravel and obvious holes, but the plaintiff was excused from not observing them because of traffic conditions, the court holding that "one whose attention is necessarily diverted by reason of present or reasonably to be anticipated dangers is not held with the same degree of strictness to the observance of the ground beneath him as he would be in other circumstances." In City of Albany v. Humber, 101 Ga. App. 276 ( 113 S.E.2d 635) the plaintiff, her attention attracted to the more obvious defects in the sidewalk, allowed her foot to be caught in a small crack. The court, quoting Glover, observed: "One is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted as at other times." In Big Apple Super Market of Rome v. Briggs, 102 Ga. App. 11 ( 115 S.E.2d 385) the petition of a plaintiff who stumbled over a box negligently protruding into a store aisle was held to present a jury question on the issue of the plaintiff's exercise of ordinary care for her own safety under the circumstances. Chief Judge Felton stated: "The question whether the plaintiff might have discovered the articles in the aisle by the exercise of ordinary care must be determined in the light of the attendant circumstances. Kitchens v. Davis, 96 Ga. App. 30, supra. The petition alleges that her attention was diverted by displays of merchandise on nearby shelves. It is therefore a question for the jury whether she should, in the exercise of ordinary care, have discovered the carton in the aisle and avoided tripping over it. Stanfield v. Forrest Five c. Stores, 95 Ga. App. 739 ( 99 S.E.2d 167) and cits.; Rich's, Inc. v. Denmon, 101 Ga. App. 600 (1) ( 114 S.E.2d 462)."
In the present case the plaintiff, as she approached the meter, was distracted because it was necessary for her to locate the meter coin slot, to place the money in it, and to read the time registered on the meter. As a result she did not notice the sign supports partially enclosing the meter, nor did she strike against them. When she turned to retrace her steps they were immediately beneath her and could not be seen without bending over to examine the sidewalk, but in the act of turning she tripped over one of the metal supports so placed and fell to the ground. The placement of the sign in this fashion is alleged to be a trap in that it partially enclosed the meter in such manner that the plaintiff, entering the open side, did not strike it, but because of the narrowness of the space the mere act of turning around caused her to trip against it. The question of whether the plaintiff's negligence under these circumstances would bar her recovery, if proven, should be left to the jury.
The trial court erred in dismissing the petitions on general demurrer.
Judgment reversed. Carlisle, P. J., and Eberhardt, J., concur.