Ray v. Gallant-Belk Co. of Elberton, GALLANT-BELK

• Decision Date: 18 October 1978
• Docket Number: GALLANT-BELK,No. 56365,56365
• Citation: 249 S.E.2d 635,147 Ga.App. 580
• Parties: RAY v.COMPANY OF ELBERTON.
• Court: Georgia Court of Appeals

Page 635

249 S.E.2d 635

147 Ga.App. 580

RAY v. GALLANT-BELK COMPANY OF ELBERTON.

No. 56365.

Court of Appeals of Georgia.

Argued Sept. 11, 1978.

Decided Oct. 2, 1978.

Rehearing Denied Oct. 18, 1978.

Smith & Shiver, Thomas F. Hodges, III, Truett Smith, Elberton, for appellant.

Erwin, Epting, Gibson & McLeod, E. Davison Burch, Athens, for appellee.

DEEN, Presiding Judge.

The appellant, a customer in appellee's store, fell while descending a flight of steps. Her action for personal injury resulted in a verdict for the defendant from which she appeals.

1. "Evidence is presumed to be admissible unless some objection is made which shows the contrary." Atlas Auto Fin. Co. v. Atkins, 79 Ga.App. 91, 98, 53 S.E.2d 171, 176 (1949). Where part of a conversation, document or transaction has been admitted in evidence it is generally held that so much of the remainder of it as may be relevant may be brought out by the opposite party. Owens v. Shugart, 61 Ga.App. 177(2), 6 S.E.2d 121 (1939). And, under the doctrine of curative admissibility, it is frequently held that where otherwise inadmissible evidence has been admitted in behalf of one party, similar evidence may be admitted to rebut it. Cf. State v. Crissman, 31 Ohio App.2d 170, 287 N.E.2d 642. Here an employee of the defendant was asked on cross examination whether he knew of anyone else falling on the steps and replied, "I believe about three years ago it was a lady fell . . . at the bottom." During the direct examination which followed he was reminded of his statement and asked, "Did you talk to that lady?" to which he replied over objection that he asked her if she was hurt and she replied no and that it was her fault, her shoe heel broke.

The obvious intent of the original question was to establish that another person had fallen on the same steps, and thus perhaps give rise to an inference that the method of construction (which later testimony established to be obsolete) was dangerous. But such an inference might be short-lived if it appeared from the same testimony that the victim blamed herself and not the steps for her fall. Normally evidence of other occurrences and accidents at approximately the same place is not admissible. City of Augusta v. Hafers, 61 Ga. 48 (1878); Cox v. Norris, 70 Ga.App. 580, 28 S.E.2d 888 (1944); Gahring v. Barron, 108 Ga.App. 530 133 S.E.2d 389 (1963). Where, as here, evidence of the prior accident was introduced by the opposite party, the immediate reaction of the person involved was relevant to explain the incident. It was not error to overrule an objection based on the contention that the statement was hearsay, since the issue was not so much the truth or falsity of the explanation as the fact that it was made under the circumstances described.

2. The stairs in question had been built over forty years previously and did not meet the standards of the Southern Building Code, which the City of Elberton had adopted by ordinance. They were consequently legal as a nonconforming use. This being so, it was not error to reject the proffered city ordinance, and this is all the more true since the building Code itself was allowed in evidence, along with testimony as to the manner in which the construction of this stairway varied from present day accepted practices. This would meet the standard of Tyson v. Shoemaker, 208 Ga. 28, 65 S.E.2d 163 (1951) where it was held that an illegally placed stop sign, while not relevant on the issue of negligence per se, might still be relevant to a standard of care failure to observe which would amount to common law negligence. Isom v. Schettino, 129 Ga.App. 73, 199 S.E.2d 89 (1973) holds nothing to the contrary of the ruling here, as the jury were given evidence of standards...