Bray v. Barrett

• Decision Date: 09 June 1951
• Docket Number: No. 33529,No. 1,33529,1
• Citation: 84 Ga.App. 114,65 S.E.2d 612
• Parties: BRAY v. BARRETT
• Court: Georgia Court of Appeals

Page 612

65 S.E.2d 612

84 Ga.App. 114

BRAY v.BARRETT.

No. 33529.

Court of Appeals of Georgia, Division No. 1.

June 9, 1951.

Syllabus by the Court.

It does not affirmatively appear from the allegations of the plaintiff's petition that he could have avoided the injury to himself, caused by the defendant's alleged negligence, by the exercise of ordinary care, and the trial judge did not err in overruling the defendant's general demurrer.

Charles E. Barrett filed suit against P. H. Bray in the Superior Court of Lowndes County, and the petition as amended allleged substantially that the defendant operated a grocery store in Valdosta, Georgia, and the plaintiff operated a shoe repair shop there.They occupied adjoining store rooms in the same building, both store rooms fronting on a paved street in said city.Immediately in front of the main entrance to the defendant's place of business there was a canvas awning, commonly known as a drop awning, which could be raised or lowered as desired by the defendant.In its lowered position, the awning extended over the sidewalk approaching the main entrance of the defendant's store, and it was impossible to enter the store by this entrance without walking under the awning.The awning was constructed with iron rods as a supporting and forming frame, and when lowered it extended about five feet outward from the building.The lower side supporting rods are approximately five feet long and are coupled at the building's edge to a vertical rod or sleeve.The coupling mechanism is designed to permit the lower side supporting rods to slip up and down the vertical rods, making it possible to vary the height of the side supporting rods above the sidewalk level, depending upon the position of the coupling on the vertical rod.The frame of the awning is covered with canvas, and a canvas flap or fringe extends about nine inches below the lower side and front supporting rods.Awnings of this general type are customarily and properly fitted with some kind of safety device, usually a chain or cable attached to the side supporting rod to prevent the side supporting rod from changing positions and from changing its height above the sidewalk.The lower side supporting rod of the awning on its north side in a lowered position was not more than 3.5 feet from the middle of the plaintiff's door.The awning was owned by the defendant and was under the exclusive control of the defendant and his employees.

It was alleged that on June 2, 1949, at about 1 p. m., the plaintiff left his place of business to go to the defendant's store to buy a package of cigarettes.The plaintiff walked out of his front door onto the sidewalk, turned southward (to his left), and had taken two or three steps when his forehead struck the lower side supporting rod of the awning on its north side (the awning being in a lowered position).His glasses were bent out of shape.The blow stunned the plaintiff, and to keep from falling, he held to the iron rod for a few seconds and then walked back into his place of business and sat down.

It was alleged that the route which the plaintiff followed was his customary route and method of travel from his own place to that of the defendant's and that he had many times traversed the same path in the same manner without harm or injury.As he left the door to his place of business, the plaintiff instinctively glanced at the sidewalk to assure his safety in walking, and his head was momentarily lowered immediately after he left his own place of business.Because of the short distance between the plaintiff's door and the awning rod, because of the fact that he had many times previously traversed with safety the same route over which he traveled, and because he lowered his head momentarily to examine the sidewalk in front of him, the plaintiff had insufficient time and opportunity to observe or see the condition of the awning in front of the defendant's store.On account of the nearness of the awaning rod to the plaintiff's door and of the gradual left turn necessary to be made in order to approach the entrance to the defendant's store, the awning rod was never in the line of the plaintiff's vision until the instant when his head struck the rod.On the previous occasions when the plaintiff had traversed the same route from his own place of business to the defendant's store, the lower side supporting rods of the awning on the north side had always been sufficiently high above the sidewalk to permit the plaintiff to walk under the same without danger of striking his head.On the occasion when the plaintiff's head struck the awning rod, the awnings and awning rods were in a much lower position than previously.

The injury and damage sustained by the plaintiff as the result of the blow from the awning were set out in the petition, and it was alleged that the failure of the defendant to exercise ordinary care in keeping the approach to his premises in a safe condition was the proximate cause of the plaintiff's injury and damage.When the plaintiff was injured, the lower side supporting rod of the awning on the north side was approximately five feet high at the building's edge, and approximately six feet high at the forward edge.The awning was not then equipped with any kind of safety device, such as chains, cables, or wires attached to the lower side supporting rod to keep this rod in its proper position and height above the sidewalk, and this was known to the defendant.When the plaintiff was injured, that part of the side rod on the north side of the awaning where the rod couples to the vertical rod or sleeve was defective, so that the lower side supporting rod would not remain in a safe position when the awning was lowered, and this was known to the defendant.

The defendant was charged with the following particular acts of negligence: (a) At the times mentioned, there was of force and effect in the City of Valdosta, Georgia, a valid municipal ordinance which reads as follows: 's 17.Drop Awnings.Awnings composed of cloth and supported by iron frames folding back against the wall, commonly known as drop awnings, shall be permitted anywhere, provided they shall not be less than fourteen (14) feet high over the sidewalk at the wall, and not less than seven (7) feet at the front, unless permitted by the Street Committee.This ordinance shall apply to all streets that are paved or shall be paved.'(Ch. 13, § 12 [sic], The Code of the City of Valdosta, 1939).The defendant was in violation of this ordinance in that his awning was at the time of the plaintiff's injury only 6.2 feet high at the front, and only approximately five feet high at the wall edge.This was negligence per se. (b) In maintaining an awning over the approach to his place of business, knowing that it was not equipped with any safety device which would prevent the side supporting rods from falling to a height too low for the safety of those desiring to use the sidewalk or to enter the defendant's place of business.(c) In maintaining an awning over the approach to his place of business knowing that the side rod coupling mechanism was defective and would not keep the side rod in a fixed position.(d) In failing to discover and remedy the condition of the north side supporting rod of the awning, after the same had fallen, which condition could have been discovered by the defendant in the exercise of ordinary care.

The defendant demurred generally and specially to the...