Goldsmith v. Hazelwood

• Court: Georgia Court of Appeals
• Writing for the Court: GARDNER
• Citation: Goldsmith v. Hazelwood, 93 Ga.App. 466, 92 S.E.2d 48 (Ga. App. 1956)
• Decision Date: 27 January 1956
• Docket Number: No. 35967,No. 2,35967,2
• Parties: J. M. GOLDSMITH et al. v. Flora S. HAZELWOOD

Page 48

92 S.E.2d 48

93 Ga.App. 466

J. M. GOLDSMITH et al. v. Flora S. HAZELWOOD.

No. 35967.

Court of Appeals of Georgia, Division No. 2.

Jan. 27, 1956.

Rehearing Denied Feb. 8, 1956.

Syllabus by the Court

The court did not err in overruling the general demurrer to the petition.

The petition in this case set out, in substance, the following allegations: That the plaintiff, an employee of the defendants, on January 14, 1954 at approximately 11:30 a. m. walked up a wooden stairway on the premises of the defendants to utilize a rest room provided on the second floor of said premises; that after having used said rest room the plaintiff attempted to descend the wooden steps to the main floor, said wooden steps alleged to be three and one-half to four feet wide, to have become worn slick in certain places and rough in other places, to have contained dents or holes and uneven places and to have been maintained without any floor covering, safety tread, handrail or bannister. The plaintiff also alleged that said steps were in semi-darkness, there being no lighting to illuminate said steps; that in descending the steps her feet slipped out from under her, causing her to fall and roll down the stairway and thereby sustaining certain described injuries.

The defendants filed general and special demurrers to the petition. After a hearing thereon the trial court overruled the general demurrer, but did not pass upon the special demurrers. The defendants contend the order of the trial court overruling said general demurrer is error, and have brought this ruling before this court for review.

T. J. Long, Ben Weinberg, Jr., Atlanta, for plaintiff in error.

John L. Westmoreland, Sr., John L. Westmoreland, Jr., Ernest Tidwell, Atlanta, for defendant in error.

GARDNER, Presiding Judge.

The defendants contend that the plaintiff is barred from a recovery by reason of her own negligent failure to exercise ordinary care for her own safety. Counsel cites in support of this theory Mattox v. Atlanta Enterprises, 91 Ga.App. 847, 87 S.E.2d 432. In that case the plaintiff brought an action for damages based upon the alleged engligence of Atlanta Enterprises, Inc., resulting in certain injuries to the plaintiff, the plaintiff alleging that the defendant corporation operated a motion picture theatre and charged a fee for admission. The plaintiff, upon inquiring of an usher as to the location of the ladies' rest room, was told to go down a stairway, turn left as she entered the lobby, and to follow another stairway down into the rest room. The stairway was alleged to have been unlighted and dark and that as the plaintiff proceeded cautiously down the same, her foot caught in a torn place in the carpet, causing her to fall down the stairway and suffer described injuries. In that case the court affirmed the trial court in sustaining a general demurrer. However, the petition in that case showed on its face that the plaintiff could not safely descend the steps. The allegations in that case are not similar to the allegations in the instant case and therefore we do not feel that we need follow that decision in the instant case. The defendants also rely on Brim v. Healey Real Estate & Improvement Co., 56 Ga.App. 483, 193 S.E. 84 wherein this court affirmed the ruling of the trial court in sustaining a general demurrer. That case concerned a metal strip which projected 1/4"' above the floor, over which the plaintiff tripped and fell, sustaining injuries. The court in that case limited its ruling to structural defects and expressly stated that the ruling there would not be applicable to cases involving defects which are not structural. The case at bar does not involve structural defects.

The defendants' contention that the plaintiff was barred from recovery by reason of the fact that the plaintiff was an employee of the defendants is refuted by Rothschild v. First National Bank of Atlanta, 54 Ga.App. 486, 188 S.E. 301, 303, wherein it is said: 'Therefore do not think that the plaintiff, in performing her duties as employee of a tenant of the defendant, is required continually to be on the lookout for unsafe conditions. We are firmly convinced that we would not be justified in the eyes of the law, in the face of her allegations that the slippery condition of the floor was not obvious, to say that it was obvious. True, she is possibly to be charged with some familiarity with the general condition of the floor, but if we charge her with knowledge that the floor was to some extent defective, we cannot say it was sufficient knowledge to give a full appreciation of the danger attendant upon its use, as if she knew of all of the defective conditions which contributed to her injury.'

It does not affirmatively appear in the instant case that the plaintiff was not in the exercise of ordinary care in using the stairway, but on the contrary it appears that she was in the exercise of ordinary care. It is clearly the rule that failure on the part of an owner or occupier of premises who invites or induces others to come upon his premises for any lawful purpose makes him liable in damages for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. Code, § 105-401. And this applies to hidden defects and to those not discoverable by the invitee by the exercise of ordinary care. See Lane Drug Stores v. Story, 72 Ga.App. 886, 35 S.E.2d 472. Likewise, such owner or occupier is liable for failure to exercise ordinary care to warn such invitees of danger or defects in such premises. See Tybee Amusement Co. v. Odum, 51 Ga.App. 1(1a), 179 S.E. 415. This same rule applies to persons maintaining a business as to those who come as invitees. See Lake v. Cameron, 64 Ga.App. 501, 505, 13 S.E.2d 856.

Now, as to whether or not the plaintiff in the instant case was in the exercise of ordinary care for her own safety, we must remember that the question of negligence of the defendants and...