Moore v. Sears, Roebuck & Co.

• Decision Date: 14 February 1931
• Docket Number: 20759.
• Citation: 157 S.E. 106,42 Ga.App. 658
• Parties: MOORE v. SEARS, ROEBUCK & CO.
• Court: Georgia Court of Appeals

157 S.E. 106

42 Ga.App. 658

MOORE v. SEARS, ROEBUCK & CO.

No. 20759.

Court of Appeals of Georgia, Second Division

February 14, 1931

Syllabus by the Court.

Petition for injuries to customer tripping over chain across corridor of defendant's store through which customers were expected to pass stated case.

In the instant suit for damages for injuries sustained by the plaintiff when she tripped and fell over a small chain suspended across and just above the floor in a corridor of the defendant's building through which customers were expected to pass in entering and leaving the building, it cannot be held as a matter of law that the allegations of fact failed to show negligence on the part of the defendant or that the petition disclosed such negligence or want of care on the part of the plaintiff as to bar a recovery. The petition set forth a cause of action, and the court erred in sustaining the general demurrer.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by Mrs. Cortez Moore against Sears, Roebuck & Co. Judgment for defendant, and plaintiff brings error.

Reversed.

Burress & Dillard, of Atlanta, for plaintiff in error.

Alston Alston, Foster & Moise, of Atlanta, for defendant in error.

BELL J. (After stating the foregoing facts).

We think the court erred in sustaining the general demurrer and dismissing the petition. Under the specific facts, it should not be held as a matter of law that the petition failed to show negligence on the part of the defendant, or that the plaintiff was guilty of such negligence or want of care as to bar a recovery. This is not such a plain case that the court may decide it upon the pleadings and without reference to a jury; and the more specially is this true as regards the conduct of the plaintiff, since it is the rule in this state that the plaintiff may have a partial recovery notwithstanding there may have been some degree of contributory negligence on his or her part. See, in this connection, Wynne v. Southern Bell Tel. Co., 159 Ga 623 (1, 2), 126 S.E. 388; Samples v. City of Atlanta, 95 Ga. 110, 115, 22 S.E. 135; Woolworth Co. v. Wood, 32 Ga.App. 575 (1), 124 S.E. 110; City of Macon v. Jones, 36 Ga.App. 799, 138 S.E. 283; City of Rome v. Phillips, 37 Ga.App. 299 (1), 139 S.E. 828; McFarland v. City of McCaysville, 39 Ga.App. 739 (3), 148 S.E. 421.

The cases of Lebby v. Atlanta Realty Corp., 25 Ga.App. 369, 103 S.E. 433; Ogain v. Imperial Café, 25 Ga.App. 415, 103 S.E. 594; Flanders v. Atlanta Terminal Co., 21 Ga.App. 812, 95 S.E. 307; Jones v. Asa G. Candler, Inc., 22 Ga.App. 717, 97 S.E. 112; Hendricks v. Jones, 28 Ga.App. 335, 111 S.E. 81; Day v. Graybill, 24 Ga.App. 524, 101 S.E. 759; Avary v. Anderson, 31 Ga.App. 402, 120 S.E. 683, were distinguished in Mattox v. Lambright, 31 Ga.App. 441, 120 S.E. 685, and what was said regarding them in the Mattox Case might be repeated here. Moreover, if there is any conflict between any of those cases and the more recent case of Wynne v. Southern Bell Tel. Co., supra, the last-mentioned case, decided as it was by the Supreme Court, should control.

Counsel for the defendant make the point that the petition fails to show negligence in the absence of anything to indicate how long...