Nat'l Bellas-hess Co v. Patrick

• Decision Date: 21 June 1934
• Docket Number: Nos. 23756, 23803.,s. 23756, 23803.
• Citation: 175 S.E. 255,49 Ga.App. 280
• Court: Georgia Court of Appeals
• Parties: NATIONAL BELLAS-HESS CO. et al. v. PATRICK. PATRICK. v. NATIONAL BELLAS-HESS CO. et al.

49 Ga.App. 280

175 S.E. 255

NATIONAL BELLAS-HESS CO. et al.

v.PATRICK.

PATRICK.

v.NATIONAL BELLAS-HESS CO. et al.

Nos. 23756, 23803.

Court of Appeals of Georgia, Division No. 1.

June 21, 1934.

Syllabus by the Court.

1. Under the pleadings and the uncontradicted evidence, the verdict for the defendant was demanded. It was therefore an abuse of the discretion of the trial judge to grant a new trial because of the commission of an alleged error, if it was error, in allowing the jury to view the premises where the injury occurred. Conceding, but not deciding, that the assignment of error is meritorious, the verdict being demanded, the error was harmless as to the plaintiff.

2. Where a case has been reported stenographically by an official court reporter, either under an agreement of counsel or parties or under the order of the trial judge, and afterwards, on the hearing of a motion for a new trial the judge is unable to remember the testimony and verify the brief of evidence tendered to him, he may order a transcript or brief of such testimony and proceedings written out in longhand by the reporter, and prescribe the manner of payment therefor. Movant is not required to use the stenographic report in making up his brief of evidence, but the trial court may have the benefit thereof in approving the brief tendered, and prescribe as to the payment for its transcribing.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by Mrs. Frances E. Patrick against the National Bellas-Hess Company and another. Judgment for defendants, plaintiff's motion for a new trial was granted, and defendants bring error; plaintiff filing a crossbill of exceptions.

Reversed on the main bill of exceptions, and affirmed on cross-bill.

John M. Slaton and McDaniel, Neely & Marshall, all of Atlanta, for plaintiffs in error.

Carpenter & Ellis, of Atlanta, for defendant in error.

GUERRT, Judge.

1. Mrs. Frances E. Patrick brought an action for damages against the National Bellas-Hess Company and the Ross-Frankel Contractors, Inc., alleging that she entered the store of the defendant company with a view of making a purchase, when the store was being remodeled by the Ross-Frankel Company; that the interior of the store was so arranged that the tables upon which merchandise was displayed were placed so as to form aisles, and on the sides of the store were counters with shelves back of them, against the walls; that the employees of the Ross-Frankel Company had placed lengthwise of one of said tables a stack of two by four timbers which protruded out from the overlapping top of said table into the passageway used by the customers of said store, said stack protruding out approximately six or eight inches, and said stack of timbers being approximately three feet in height, nearly to the top of the table; that the artificial light over this particular table was so arranged as to cast a shadow by the edge or said table, making it difficult for plaintiff and other customers to see said stack of timbers, the aisle being approximately four feet in width; that there had also been placed alongside said stack of timbers lengthwise on the floor two pieces of plank, one by twelve inches, twelve feet long, one on top of the other, making a rise of approximately three inches above the floor; that in going to the counter or table against which was placed this stack of timber she tripped over the two planks laid on the floor and fell or caught with her hands against the table and sustained certain named injuries by wrenching and straining her back; and that she could not have discovered the presence of the planks by the use of ordinary care. A demurrer to this petition was sustained with leave to amend. By amendment, the allegation with reference to the position of the lights and tables so as to cast a shadow, "making it difficult (italics ours) for plaintiff and other customers in the store to have ascertained the presence of said stack of timbers, " was stricken, and in lieu thereof the following was inserted, "making it impossible (italics ours) for plaintiff to observe the timber so arranged in said passageway or alongside of said tables." The petition was further amended as follows: "Petitioner could not see the timbers placed alongside of the said tables or the timbers in the aisle, nor did she have warning of any kind that there was anything on said floor or insaid passageways, in that the artificial lights for the lighting of the display of goods on the tables in said basement were so arranged that the lights fell on the top of the tables and the protruding parts of the table prevented the lights from shining or disclosing the timbers referred to. The timbers were hidden from the view of your petitioner and were not disclosed to her until after she had fallen upon them. * * * Your petitioner alleges that the timbers along the edge of said aisle and against the edges of the tables were not obvious to her, and could not by the exercise of ordinary care have been seen and discovered by the petitioner. Your petitioner could not see the timbers in said aisle or against said tables, because they were hidden from her view and from the view of people walking along the passageways in said store. (Italics ours.) Further, the artificial lights in said store were so arranged and so dim they made it impossible for. anyone to see said timbers. * * * The timbers were arranged in such a manner that they would not be observed by anyone approaching the passageway, and it appeared to your petitioner that there was nothing in said passageway that would cause her to stumble or fall. * * * Plaintiff could not have avoided the injury, inasmuch as she could not have seen the hidden danger heretofore alleged in said petition." The evidence...