Redding v. Sinclair Refining Co.

• Decision Date: 26 January 1962
• Docket Number: Nos. 39289,39290,No. 3,s. 39289,3
• Citation: 105 Ga.App. 375,124 S.E.2d 688
• Parties: Winnie REDDING v. SINCLAIR REFINING COMPANY et al. T. M. REDDING v. SINCLAIR REFINING COMPANY et al
• Court: Georgia Court of Appeals

Page 688

124 S.E.2d 688

105 Ga.App. 375

Winnie REDDING v. SINCLAIR REFINING COMPANY et al.

T. M. REDDING v. SINCLAIR REFINING COMPANY et al.

Nos. 39289, 39290.

Court of Appeals of Georgia, Division No. 3.

Jan. 26, 1962.

Rehearing Denied Feb. 15, 1962.

Syllabus by the Court

1. The petitions in these cases allege actionable negligence in placing a metal sign with inconspicuous supports slightly raised above the sidewalk in such manner that the supports partially enclosed the area surrounding a parking meter and at a place where the erection of signs was prohibited by city ordinance, upon the inconspicuous supports of which sign the plaintiff tripped and fell, sustaining serious injuries.

2. Whether the plaintiff was guilty of contributory negligence barring recovery is a jury question under the facts alleged in this petition.

The plaintiffs, husband and wife, filed their actions in the Superior Court of Colquitt County for damages resulting from personal injuries to the wife. Negligence is alleged in each case against the corporate defendant as lessee and supervisor of, and the individual defendants as managers of a filling station based on the following alleged acts: on the south side of the service station lot there is a sidewalk, the west 25 feet of which is incorporated in a driveway into the station; on the south side of this sidewalk about 3 1/2 feet east of the driveway is a parking meter regulating a parking space immediately to the south. Defendants placed an advertising sing rack about one foot northwest of the parking meter, which rack also had a sign stand about3 1/2 feet high and 2 1/2 feet wide and had attached to it a metal frame 3 feet high and 2 feet wide held within the framework of the sign rack in which advertising matter was placed; there were two pieces of metal to which the sides of the sign rack were attached serving as feet or supports, which feet were approximately 42 inches long, 4"' high at the center where the sign rack was attached, and about 1 1/2"' above the sidewalk at the ends. The bottom metal pieces, protruding at right angles from the sign were a gray color which blended with the color of the paved sidewalk making them difficult to distinguish, and were also of practically the same color as the parking meter, for which reason plaintiff failed to see them. When the plaintiff alighted from the car on the south side of the parking meter it was necessary for her to go to the north side of the meter in order to read it and place her coin in it; until she reached the northwest side the parking meter was between her and the sign rack, at which point the feet of the sign rack were under her and in close proximity to her feet which prevented her from noticing the protruding feet; her attention was distracted from the base of the sign by the act of placing money in the meter; the north and west sides of the parking meter were enclosed by the feet of the sign rack, and the plaintiff, after depositing the coin, truned to her right to leave the meter whereupon her left foot struck one of the metal feet extending out approximately 21"' from the rack, causing her to trip and fall, fracturing her hip and sustaining other severe injuries. Negligence is alleged in placing the rack at the side of the parking meter, using in such location a rack with long pieces of metal for feet which were raised slightly above and were dangerous to people using the area, failing to have any guard rail or other warning if the rack was to be left in that position to keep persons such as plaintiff from tripping and falling, and also in placing the sign on the sidewalk in violation of a valid and subsisting ordinance of the city.

The defendant's general demurrers were sustained and the petitions dismissed.

Whelchel & Whelchel, James C. Whelchel, Emory M. Hiers, Moultrie, for plaintiff in error.

Perry, Walters & Langstaff, Jesse W. Walters, Albany, Moore & R. Lamar Moore, Moultrie, for defendant in error.

CUSTER, Judge.

1. The municipal ordinance attached to the petition prohibits the erection of signs except those parallel with the face or side of the building and not extending over 18 inches from the building and then only after a permit for such sign is obtained. The sign and sign rack in question were placed on a public sidewalk, the base supports being within a foot of the parking meter in an area where it was necessary for persons to be in order to use the meter, and without a permit allowing such use of the sidewalk. The petitions are sufficient as against demurrer to show actionable negligence against all the defendants, it being alleged that the individual defendants so placed the sing and that they did so in conjunction with and under the supervision of agents of the corporate defendant.

2. It is contended, however, that the obstruction was obvious, that there is no reason why the plaintiff should not have seen it, and that her injuries were patently the result of her failure to excercise ordinary care for her own safety. In Rothschild v. First Nat. Bank of Atlanta, 54 Ga.App. 486, 188 S.E. 301, the court in discussing when the question of whether the plaintiff is in the exercise of ordinary care for his own safety may be decided by the court as a matter of law, observed: 'In deciding a question of this character, the fact is forced upon us, from the many cases we have examined, and the variety of judicial conclusions reached upon similar states of facts, that precedents are of little value, but each case must stand upon its own facts. There can be no doubt that it is a difficult problem for a court to declare as a matter of law that one is negligent or lacking in ordinary care for his safety.' The general rule is that where the minds of reasonable men may disagree as to the factum of negligence, or of whose negligence caused the injury, the jury and not the court is the proper instrument to evaluate the facts, and draw the proper conclusion. Georgia Power Co. v. Blum, 80 Ga.App. 618, 57 S.E.2d 18. The plaintiff need not negative the defense of contributory negligence in her petition, and it will not be dismissed on demurrer for this reason unless the petition affirmatively discloses facts demanding such conclusion as a matter of law. Central Georgia Electric Membership Corp. v. Heath, 60 Ga.App. 649, 4 S.E.2d 700; Minnick v. Jackson, 64 Ga.App. 554, 13 S.E.2d 891; Young Women's Christian Ass'n v. Barnett, 93 Ga.App. 322, 91 S.E.2d 381. In many cases where the plaintiff fell over or ran into an otherwise obvious defect or obstacle, the matter of contributory negligence was held to be a jury question because of allegations explaining that the obstacle was difficult to see because it blended in...