McCrory Stores Corp. v. Ahern

• Decision Date: 16 July 1941
• Docket Number: 28823.
• Citation: 15 S.E.2d 797,65 Ga.App. 334
• Parties: McCRORY STORES CORPORATION v. AHERN.
• Court: Georgia Court of Appeals

15 S.E.2d 797

65 Ga.App. 334

McCRORY STORES CORPORATION v. AHERN.

No. 28823.

Court of Appeals of Georgia, Division No. 1.

July 16, 1941

It appears from the petition that Mrs. George W. Ahern, in company with her twin children, went into a store owned and operated by McCrory Stores Corporation, located at No. 73 Whitehall Street S.W. in the City of Atlanta, for the purpose of purchasing shirts for her children. She was directed by an employee down a flight of steps to the basement of said store where she might obtain said shirts. The steps, under the allegations of the petition, were made of marble, and near the outer edge of each tread three parallel ridges, equally spaced, about one inch apart, ran the full length of each step. The ridges were made of some form of hard substance or material unknown to the plaintiff but known to the defendant and were embedded in said "marble treads, and rose up above the surface of said treads to very irregular, rough, and varying heights, varying from flush with the surface to more than an eighth of an inch above the surface." The ridges were approximately one fourth of an inch wide, the top surfaces were very rough and irregular in shape, and the sides of the ridges as they rose above the level of the tread formed a flat-sided obstructing ridge on each step. The condition could not be observed by the plaintiff from her position as she proceeded down the steps and the ridges appeared to be only dark streaks on the steps that were flush with the surface thereof. It was alleged that to determine these facts it would be necessary for one to stoop down and make a very close and careful examination by sighting along the surface of the steps and to observe that the ridges rise in place above the surface of the steps. It further appears that as the plaintiff stepped on said projecting ridges, the heel of her right shoe caught on one of the high projecting ridges on or about the third step which caused her right foot to become hung thereon, and tripping her to such an extent that she was suddenly thrown forward down said steps with great force and violence, and was severely and permanently injured. The acts of negligence charged were in directing the plaintiff to said steps which were in a dangerous and unsafe condition, in failing to warn plaintiff thereof, in maintaining steps in said condition and in permitting the ridges to project above the surface of the treads in irregular, rough, and varying heights, forming said described obstruction and in allowing said ridges so to remain; further, in failing to place at or around the steps a guard, and in not having the premises in a safe condition for use by the plaintiff as an invitee. The plaintiff further alleged that the defendant knew, or in the exercise of ordinary care could have known, of the existence of said dangerous obstructing ridges along the outer edges of said steps, which caused the plaintiff to fall and become injured.

The judge overruled the demurrer to the petition, the jury returned a verdict for the plaintiff, and the judge overruled the defendant's motion for new trial. The exceptions are to the overruling of the demurrers and of the motion for new trial.

John M. Slaton and James J. Slaton, both of Atlanta, for plaintiff in error.

No appearance for defendant in error.

MacINTYRE Judge.

Under the allegations of the petition, the plaintiff went upon the premises of the defendant as an invitee for the purpose of purchasing merchandise in the defendant's store, and while in the store the defendant was liable to the plaintiff for injury occasioned by its failure to exercise ordinary care in keeping the premises and approaches safe. Code, § 105-401; Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145, 148, 4 S.E. 759, 12 Am.St.Rep. 244; Fuller v. Louis Steyerman & Sons, Inc., 46 Ga.App. 830, 834, 169 S.E. 508. The question presented as to whether this court can say, as a matter of law under the facts alleged, that the defendant did not fail to exercise ordinary care in keeping its premises and approaches safe, is not an easy one. The complaint here is in maintaining the premises in an unsafe and dangerous condition, and Code, § 105-401, places on the owner or occupier of the land the duty to exercise ordinary care for the safety of his invitees, in discovering defects or dangers in the premises or instrumentalities thereon, and imposes a liability for injuries resulting from such defects as a reasonable inspection would disclose. Fulton Ice & Coal Co v. Pece, 29 Ga.App. 507, 116 S.E. 57. In other words, one is not chargeable with negligence in failing to discover and remedy a danger in the property which he could not have discovered by the exercise of ordinary care, or which has not existed for a sufficient time to charge him with the duty of discovering it. Neither is a person bound to foresee and guard against casualties which are not reasonably to be expected, which would not occur save under exceptional circumstances, or which result from an unexpected act of the person injured.

The actual result of an act or omission is not controlling in determining whether or not it was negligent, nor is the duty of the person doing or omitting to do an act to be estimated by what, after an injury has occurred, then first appears to be a proper precaution, but the question of negligence must be determined according to what should reasonably have been anticipated, in the exercise of ordinary care, as likely to happen. 45 C.J. 660, § 28. "It is not uncommon for a person to fall downstairs when there is no defect in the stairway or its covering. A heel may catch on the edge of the stair, or the carpet, and a fall result. The fault rests, not with the stairway, but with the person who so placed his foot. Too often, the accident having so happened, such a person seeks a 'defect' through which to pin upon another the damage flowing from his own lapse. The frequency of that situation led one justice, during argument of an appeal, to make the ironic comment that 'They always find it.' There are, of course, many stairway cases involving honest claims. Some of them are based upon dangerous construction, far more upon negligent maintenance. *** Negligent maintenance may involve a great variety of defects; a broken tread, a hole in the tread, defective metal covering, debris, snow and ice, torn carpet, and the like. But the defective step must be identified with the plaintiff's fall, and notice of the defective condition must be brought home to the party sought to be charged." (Italics ours.) 4 Shearman and Redfield on Negligence, Rev.Ed., 1820, 1822, § 797.

The acts of negligence here complained of were of maintenance and the case should not be confused with cases where the negligence complained of was improper construction which make the person charged with liability liable whether he knew of the defects in original construction or not. See Monahan v. National Realty Co., 4 Ga.App. 680, 62 S.E. 127; Mayor v. Braxton, 70 Ga. 193; Marr v. Dieter, 27 Ga.App. 711, 109 S.E. 532; Code,§ 61-112. When the...