Mattox v. Lambright

• Decision Date: 10 December 1923
• Docket Number: 14661.
• Citation: 120 S.E. 685,31 Ga.App. 441
• Parties: MATTOX v. LAMBRIGHT.
• Court: Georgia Court of Appeals

120 S.E. 685

31 Ga.App. 441

MATTOX v. LAMBRIGHT.

No. 14661.

Court of Appeals of Georgia, Second Division

December 10, 1923

Syllabus by the Court.

Where a complaint for damages alleged: (1) That the plaintiff was a member of the family of one of the defendant's tenants and an invitee and guest of another, and as such had the right to use a certain hallway, designed for the use of the tenants and their guests and invitees, in the defendant's apartment wherein the tenants referred to resided, over which hallway the defendant as landlord retained possession and control; (2) a dangerous condition in the hallway, by reason of which the plaintiff was injured, with facts which would authorize an inference of negligence on the part of the defendant in reference to such condition, in failing to keep the hallway in a reasonably safe condition for the use of the tenants and their invitees; and (3) that the plaintiff at the time of her injury was in the exercise of all ordinary care and diligence under the circumstances, detailing the facts in reference thereto, from which it cannot be said as a matter of law that there was a want of ordinary care on her part but which would authorize the conclusion alleged--a cause of action was set forth, and a general demurrer was improperly sustained.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by Betty Mattox against W. E. Lambright. Judgment for defendant, and plaintiff brings error. Reversed.

A general demurrer was sustained to the action of Mrs. Betty Mattox against W. E. Lambright, a suit for damages, and the plaintiff excepted. The petition alleged:

"At about 9 o'clock a. m., on the 15th day of April 1922, the plaintiff called to see Mrs. B. M. Asbill, wife of B. M. Asbill at their apartment, apartment No. 24 of the Poncemore Apartment, at 831 Ponce de Leon avenue, in the city of Atlanta, Fulton county, Georgia." "The plaintiff went to the apartment of Mr. and Mrs. Asbill as an invitee and guest of the said Mr. and Mrs. Asbill upon matters of interest and concern both to Mrs. B. M. Asbill and to herself." "She remained in the Asbill apartment for about 30 minutes, and upon leaving said apartment when she had finished her visit, and immediately upon entering the hallway leading up to said apartment from the outside, the plaintiff's feet shot out from under her and she fell in said hallway just outside the door of the Asbill apartment and, as she fell, her right hip struck against the edge of the steps leading up from said hallway to the apartment above and against the post at the edge of said steps, and she fell flat upon the floor and broke her right hip bone near the upper joint, breaking the neck of the femur completely in two."

At the time of said injury the defendant was the lawful owner of said apartment house at No. 831 Ponce de Leon avenue, and was in lawful possession thereof through himself and through his agents, and had been in possession thereof for some time prior to the injury herein complained." "The said Mr. and Mrs. B. M. Asbill were, at the time of the injury herein complained of, lawful tenants of said apartment No. 24 of the Poncemore Apartment, and Mr. Asbill was paying a rental on said apartment of approximately $75 per month, and was occupying said apartment together with his wife, the said Mrs. B. M. Asbill." "The plaintiff was at the time of the injury herein complained of a lawful tenant of apartment No. 35 of said Poncemore Apartment, occupying the same as a member of the family of W. A. Sutherland, who was renting from the defendant said apartment No. 35 at a monthly rental of $110 per month." "The hallway in which the injury herein complained of occurred was a common hallway leading not only to said apartment No. 24, but also to apartment above said apartment No. 24, and said hallway was not in the possession and control of the said tenants, or any of them, but remained and was at all times in the possession and control of the owner of said building, whose duty it was to see that said hall was kept in proper repair and in proper condition for the use of said tenants and their guests."

The defendant prior to and at the time of the injury herein complained of did do certain things in connection with said hallway, such as sweeping, cleaning, and lighting same, for the purpose of keeping the same clean and tenantable and in other ways exercised control over said hallway." "Within less than 40 minutes prior to the occurrence of the injury herein complained of, and between the time the plaintiff entered said apartment No. 24 and the time she left said apartment No. 24, the defendant, through a duly constituted agent and employee, commonly called the 'janitor,' had placed upon the floor of said hallway leading to and from the Asbill apartment and the apartment of other tenants in the same entrance of the building a liquid flooring covering made of a greasy, slippery

substance, which your petitioner understands is commonly called 'liquid wax,' which will hereinafter be referred to as 'liquid wax,' and left the same upon the floor without wiping it off or otherwise drying it up and without notifying Mrs. Asbill or the plaintiff or any one in said apartment of the dangerous condition thus created." "That the result of leaving said liquid wax upon the floor without wiping it up and drying it [off] was to make the floor very slippery and to make it unsafe to walk over and did create a condition dangerous to all those who attempted to walk over said floor." "The application of the liquid wax to the floor of said hall or passageway, without wiping up or drying off the same, left said floor in a condition not reasonable and proper for the use of persons walking over same."

The act of the defendant, through his duly constituted agent and employee, of putting said liquid wax upon said floor and leaving it without wiping it up or drying it off, and in failing to notify the tenants and their guests of the danger thus created, constitutes a lack of reasonable care and diligence in keeping said hallway safe for the use of parties using the same, both the tenants and their lawfully invited guests." "The defendant failed to use reasonable care and diligence in providing a safe passageway for the tenants of said apartment No. 24 and their lawfully invited guests at the time of the injury herein complained of, in that the defendant did not apply and wipe off said liquid wax in the manner in which said wax is intended to be applied and wiped off, but applied unreasonably large quantities of the same to the floor of said hallway without wiping it off, as it is applied and wiped off by reasonably careful and prudent persons, and did not notify the plaintiff or tenants of said apartment No. 24 of the dangerous condition thus created." "The defendant was negligent in placing and permitting to be placed upon said hall or passageway leading to apartment No. 24 a slippery and greasy floor covering such as liquid wax." "The defendant was negligent in placing and permitting to be placed upon the floor of said hall or passageway leading to apartment No. 24 a slick and greasy floor covering, such as the liquid wax referred to, and leaving same upon the floor without wiping or drying it off, without notifying the plaintiff and the occupants of said apartment No. 24 of the condition of said hall or passageway."

The defendant was negligent in failing to light said passageway so that the condition of the floor could be easily and readily observed by the exercise of ordinary care and diligence on the part of persons using same, more particularly the tenants of said apartment No. 24 and their lawfully invited guests and the plaintiff herein." "The defendant was negligent in failing, after the dangerous condition of the floor of said hall or passageway, caused by the presence of large quantities of said liquid wax, came to [his] knowledge, to take such steps as were necessary immediately to place said passageway in a safe condition for the use of the tenants of apartment No. 24 and their lawfully invited guests." "The defendant was negligent in creating a dangerous and treacherous trap by greasing and slicking the floors of the hall or passageway leading up to said apartment No. 24 between the time when the plaintiff passed over the same going to the apartment of Mr. and Mrs. Asbill and the time when the plaintiff left said apartment, without giving to Mrs. Asbill or to the plaintiff any notice of said change." "The defendant was negligent in creating through his duly constituted agent and employee a condition of the floor of said hall or passageway leading up to said apartment No. 24 which unreasonably and unnecessarily endangered the life and limb and safety of persons lawfully using said passageway, including the tenants in apartment No. 24 and their lawfully invited guests." "The said hall or passageway leading to apartment No. 24 was so dark at the time of the injury herein complained of that a person using the same would not in the exercise of ordinary and reasonable care and diligence have discovered that said liquid wax was upon said floor.

The plaintiff was free from all fault and blame in the premises, for the reason that she did not see that the floor was covered with wax, nor was her attention attracted to it, nor could she discover the same in the exercise of ordinary care and diligence, for the reason that the hall was so dark that the condition of the floor could not be observed so as to tell whether or not any solution such as liquid wax was upon said floor." "The plaintiff was free from all fault and blame in the premises, and is not guilty of contributory negligence, for the reason that, even if she had known of the condition of the floor of said passageway

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