Belk-Matthews Co. of Macon v. Thompson, BELK-MATTHEWS

• Decision Date: 20 September 1956
• Docket Number: No. 36252,No. 2,BELK-MATTHEWS,36252,2
• Citation: 94 S.E.2d 516,94 Ga.App. 331
• Parties: COMPANY OF MACON v. Ruth M. THOMPSON
• Court: Georgia Court of Appeals

Page 516

94 S.E.2d 516

94 Ga.App. 331

BELK-MATTHEWS COMPANY OF MACON v. Ruth M. THOMPSON.

No. 36252.

Court of Appeals of Georgia, Division No. 2.

Sept. 20, 1956.

Syllabus by the Court.

1. An owner or occupant of abutting premises who has a servitude in the sidewalk for his private benefit, the enjoyment of which involves the disturbance of the surface of the walk or otherwise affects its safety, must exercise due care to maintain in safe condition the portion affected by such servitude and will be liable for injuries proximately resulting from default in this respect.

2. In an action for damages for the alleged negligence of the defendant in creating and maintaining for its own private benefit a defect in the sidewalk, which allegedly occasioned the plaintiff's injuries, allegations of similar occurrences, given to illustrate the physical facts and that the conditions are the same or similar are relevant for that purpose.

Mrs. Ruth M. Thompson brought an action, seeking to recover $35,000 in damages, against Belk-Matthews Company of Macon. The material allegations of her petition, as finally amended, are substantially as follows: On November 7, 1953, the defendant occupied a building on the easterly side of Third Street known as 464-466 Third Street in the City of Macon, which was used as a retail store. There is a public sidewalk adjacent to this building approximately 20 feet in width running east and west between the building and Third Street and approximately 50 feet in length, running generally north and south in front of the building. On November 7, 1953, the sidewalk, except in front of the building occupied by the defendant, was made of concrete. The sidewalk in front of the building occupied by the defendant was constructed by the defendant of terrazzo. The sidewalk in front of the building occupied by the defendant was higher than the sidewalk in front of other stores adjacent to, and north and south of, the defendant's building. Prior to November 7, 1953, the defendant removed the concrete sidewalk in front of its building and replaced it with terrazzo with words made into the terrazzo advertising Belk's. The terrazzo extended from the front of the store to the curb on Third Street, and from the northerly corner of the store to the southerly corner of the store. The defendant also built the sidewalk in front of its store at a higher elevation than the sidewalk in front of adjacent stores so that the sidewalk in front of the defendant's store slopes downward several inches from the front of its building westward for about 20 feet to the curb on the east side of Third Street. The sidewalk also slopes downward several inches in a southerly and northerly direction from a point about 9 feet from the southern and northern boundaries respectively. Although the terrain of the sidewalk, street, and store at that point was almost level naturally, the defendant reconstructed the sidewalk so that it was artificially raised and sloped and the sidewalk at that point has a greater grade, or slope, than is common use in the downtown business district of the city. The terrazzo placed upon the sidewalk by the defendant is made of small chips of marble set irregularly in cement and polished. Terrazzo is not a material in common use for sidewalks in the City of Macon. The terrazzo placed upon the public sidewalk by the defendant was in squares several feet in diameter and was vari-colored, but most of the small chips of marble were light brown or pale orange in color. The word 'Belk's' was placed several feet from the northern and southern boundaries of the sidewalk in front of the store, and these letters were made of dark green terrazzo. There were steel strips around each letter of the word, and around each square of the terrazzo. The letters in the word 'Belk's' were large and so constructed in the terrazzo that the word covered practically the entire width of the sidewalk. The defendant interfered with the public sidewalk in the manner described solely for its private use, benefit, and convenience, particularly as follows:

(a) In removing the concrete sidewalk in front of its store for the purpose of excavating and utilizing the space under the sidewalk as a basement;

(b) In re-laying the sidewalk with excessive elevation and slope in order to enlarge the basement area;

(c) In using the terrazzo for advertising purposes on the public sidewalk;

(d) In constructing dark green arrows in the terrazzo sidewalk 30 inches in width and approximately 18 feet in length extending in an arc across the public sidewalk and pointing to the entrance of its store as an invitation and inducement for customers and prospective customers to enter the store. The defendant continues, for its private use, benefit, and convenience, to use the sidewalk as aforesaid and to use the basement constructed beneath the sidewalk. At all times since replacing and resloping the sidewalk, the defendant's store has been located in the heart of the shopping district of the City of Macon where the sidewalk is walked upon every day, except Sunday, by throngs of people. On Saturday, November 7, 1953, the plaintiff was walking in a northerly direction on Third Street until she came to the defendant's store. She went upon the terrazzo area of the sidewalk and looked at some goods on display in the store window. She then turned and continued her journey northward. On that day the sidewalk in front of the defendant's store was crowded with people, and as the plaintiff was walking in a northerly direction on the sidewalk in front of the store, she stepped upon a segment of an orange and was caused to fall to the sidewalk due to the fact that the terrazzo sloped northerly and southerly and was wet from the orange. The plaintiff did not see the segment of orange until after she had fallen because her vision was obstructed by the crowd of people on the sidewalk and the orange was about the same color as the terrazzo and, therefore, inconspicuous. The plaintiff fell on the terrazzo sidewalk on the letter 'E' in the word 'Belk's', which is located about 6 feet from the front of the defendant's store and about 6 feet from the northern boundary of the sidewalk in front of the store. The orange was on the light colored terrazzo between the letter 'E' and the letter 'L' and it skidded about 9 inches across the terrazzo when the plaintiff stepped upon it as the sidewalk slopes westward and northward at that point. Prior to November 7, 1953, the defendant had knowledge that the terrazzo which it had placed upon the public sidewalk in front of its store was slick and dangerous when it became wet. The defendant also knew that the terrazzo sidewalk sloped at a material degree and the defendant, knowing of the construction of the sidewalk and that it was inherently slick and dangerous when a segment of an orange or other foreign substance was on it, nevertheless failed to warn the plaintiff and the public of these facts, but negligently allowed the slick and dangerous terrazzo to remain on the public sidewalk after it had knowledge of its slick and dangerous condition when it became wet from rain or other foreign substance. Prior to November 7, 1953, the defendant had actual knowledge that as the result of its recomposition and resloping of the sidewalk with terrazzo the sidewalk was slick and dangerous. It was aware that other persons, not knowing it to be slick and dangerous, had slipped and fallen while attempting to walk upon it under substantially the same circumstances as described here. Prior to November 7 1953, the defendant had knowledge that the terrazzo was also slick and dangerous due to its composition and slope even without any moisture or foreign substance upon it, but, nevertheless, failed to warn the plaintiff or the public of these facts and negligently allowed the slick and dangerous terrazzo to remain on the public sidewalk. At the time of the reconstruction of the sidewalk by the defendant with terrazzo, there was in existence and effect a municipal ordinance of the City of Macon providing as follows: '27-801. Abutting owners must maintain sidewalks. It shall be the duty of persons owning real estate which fronts or abuts upon any street in the city, upon proper notice served upon them by the chief of police, to lay and maintain in front of or adjacent to such realty, a substantial sidewalk of such character and material as is in this code required. Such sidewalk shall be laid according to the grade furnished by the city engineer and in compliance with the directions of the city engineer, and be subject to his approval.' The defendant in replacing the sidewalk with terrazzo failed to lay it according to the grade furnished by the city engineer, or in compliance with his directions. It also failed to obtain the approval of a city engineer. At the time the terrazzo was laid by the defendant, there was in existence and effect a municipal ordinance of the City of Macon providing as follows: '27-803. Materials for sidewalks. The material allowed in repairing, re-laying, or laying sidewalks shall be cement or tile in all cases, unless the mayor and counsel, by resolution, expressly permits the employment of some other material.' The defendant, nevertheless, repaired and re-laid the sidewalk with terazzo instead of cement or tile without a resolution by the mayor and counsel expressly permitting the use of terrazzo. At the time of the defendant's reconstruction of the sidewalk with terrazzo, there was in existence and effect a municipal ordinance of the City of Macon providing as follows: '27-806. Work done...