Belk Gallant Co. of Cartersville, Ga. v. McCrary, 34836

• Decision Date: 02 October 1953
• Docket Number: No. 2,No. 34836,34836,2
• Parties: BELK GALLANT CO. OF CARTERSVILLE, GA., Inc. v. McCRARY
• Court: Georgia Court of Appeals

Page 198

78 S.E.2d 198

88 Ga.App. 829

BELK GALLANT CO. OF CARTERSVILLE, GA., Inc. v. McCRARY.

No. 34836.

Court of Appeals of Georgia, Division No. 2.

Oct. 2, 1953.

Syllabus by the Court

The petition stated a cause of action and the trial court committed no error in overruling the general and special demurrers.

The defendant, Belk Gallant Company of Cartersville, Georgia, Incorporated, has brought this case to this court for review on exceptions to the trial-court's judgment overruling certain general and special demurrers to the petition of Mrs. Maude McCrary. The petition as finally amended is substantially as follows: 3. On May 5, 1951, at approximately 11:30 a. m., the plaintiff was a customer in the defendant's store and as such was an invitee. 4. She had gone into the defendant's store to shop for and purchase certain items of merchandise, had made her purchases, and was preparing to leave the store when she sustained certain injuries to her person. 5. The defendant's store is located in a two-story building. 6. At the time the plaintiff sustained the injuries complained of, the defendant was conducting its business of selling drygoods and other merchandise on both the first and second floors of the building. 7. The defendant, in the operation of its business, maintained in its store steps leading from the first, or street, floor to the second floor for the use of its customers in passing from one floor to the other. 8. After the plaintiff had completed her purchases, she proceeded to the steps, and 'as she prepared to descend said stairway and did actually attempt to take the first step from the second floor onto the first step of said stairway, and at a time when she was holding onto the railing of the righthand side of said stairway * * * suddenly and abruptly her feet slipped from under her and caused her to lose her balance and equilibrium and to fall violently and suddenly down and on the said flight of stairs to the first landing thereof.' 9. The floor immediately preceding the first step of the stairway, and the first step of the stairway, are made of wood and from continued use have become polished, round-edged, smooth, slick, and slippery, and there are no safety treads on either the steps or the floor area immediately preceding the steps. 10. The steps are from five and one-half to six feet 'wide' (long?) and there is no center guardrail or handrail, and the side handrails are not within the reach of the defendant's customers from the center of the stairway or from the center of the entrance from the second floor to the stairway. (Paragraph 11 was stricken on demurrer.) 12. The condition of the floor and the steps, as described, made the area dangerous to persons using this area, and the defendant has maintained the area in such condition for a considerable period of time, the length of time being known to the defendant but unknown to the plaintiff, and the defendant knew, or in the exercise of ordinary care and diligence should have known, that the floor immediately in front of the stairway and the steps of the stairway were worn smooth, slick, and roundedged on both the outer edge of the floor and the steps, and as such were dangerous and unsafe for the use of the defendant's customers. 13. As a result of the defendant's negligence in maintaining the area in the above-described manner, the plaintiff slipped and fell upon the stairway with such violent force that she suffered a severely broken ankle and other enumerated injuries, all of which caused her to suffer severe and excruciating physical and mental pain. 14, 15, 16, 17, 18. As a result of her injuries she incurred enumerated expenses. 19. At the time she sustained the injuries here complained of, the plaintiff was in good health, was 61 years of age, and had a life expectancy of 13.82 years under the Carlisle Mortality Table. 20. The alleged injuries are permanent in nature. 21. In addition to the other alleged acts of negligence, the defendant was negligent in the following particulars: '(a) In failing to keep said stairway and second floor immediately adjacent thereto in a safe condition; (b) In failing to discover that the steps and the second floor area immediately adjacent thereto had been worn smooth and that the same had become slick and round-edged from continuous usage by the defendant's patrons and in failing to replace the same; (c) In failing to equip said steps and the second floor immediately adjacent to said stairway with safety treads of some type of material which would prevent the plaintiff and other patrons from slipping and falling in the manner above set out; (d) In failing to warn the plaintiff and other patrons and customers of the store that the above described area was unsafe. (e) [This paragraph was stricken on demurrer]; (f) In failing to have warning signs relative to the worn condition of the above described area; (g) In failing to keep and maintain the above described area in a safe condition.' 22. The first step and the second floor immediately adjacent to the first step appeared to be smooth from wear, but it did not appear to be so smooth as to be dangerous to use, and the plaintiff did not know and had no means of ascertaining its actual dangerous condition, and as such she did not have a full appreciation of the risk involved in using the area, in that the defendant had failed to warn her of the aforesaid condition. 22A. The treads on the steps are pitched forward approximately one-fourth of an inch, the exact measurement of the pitch being unknown to the plaintiff, but well-known to the defendant. This pitched condition, together with the scooped-out, worn portions of the outer edge of the tread on the first step caused the tread to be slanted forward and sloped downward to such an extent that the outer edge of the tread of the first step was approximately one-half inch lower than the inner edge of the tread of the first step and, although the steps appeared to slant and slope slightly, they did not...