Rich's, Inc. v. South

• Court: Georgia Court of Appeals
• Writing for the Court: GARDNER
• Citation: Rich's, Inc. v. South, 85 S.E.2d 774, 91 Ga.App. 487 (Ga. App. 1955)
• Decision Date: 09 February 1955
• Docket Number: No. 35500,No. 2,35500,2
• Parties: RICH'S, Inc. v. Alice V. SOUTH

Page 774

85 S.E.2d 774

91 Ga.App. 487

RICH'S, Inc. v. Alice V. SOUTH.

No. 35500.

Court of Appeals of Georgia, Division No. 2.

Feb. 9, 1955.

Syllabus by the Court

The reasonable inference from the allegations of the petition is that the obstruction was such as could have been seen by the plaintiff in the exercise of ordinary care for her own safety. It follows that the alleged injury was the result of the failure on the part of the plaintiff to exercise such degree of care for her own safety as would have been necessary to avoid the injury.

Mrs. Alice V. South (hereinafter called the plaintiff) brought suit for damages against Rich's, Inc. (hereinafter called the defendant), alleging substantially that she entered the department store of the defendant as its customer, for the purpose of carrying on the usual business which might be carried on by a customer of the defendant; that the defendant, through its agents and employees, was remodeling one of the stairways to the mezzanine; that, after said employees concluded their work on the stairs for that day, they stacked boards adjacent to the stairway and in the aisle running along beside the stairway; that one timber from the stack of boards extended 12 to 15 inches into the said aisle; that there was a sign stating that the stairway was not to be used, but the area was not roped off; that she was advised by some man standing near, who was unknown to her, to use the stairway under the mezzanine; that, as she started to walk down the aisle in the direction of the other stairway, her right foot struck the aforesaid board which extended out into the aisle; that the board was three inches above floor level and approximately one-half inch thick; that, as she 'walked down the aisle, her attention was attracted to the area beneath the mezzanine and for that reason she had not observed the timber'; that the protruding timber caused her to fall and injure herself in the particulars alleged; and that she was in the exercise of ordinary care, but could not avoid tripping and falling. The specific allegations of negligence were substantially, that the defendant was negligent in permitting the piece of timber to protrude; in dailing to rope off the area or otherwise warn plaintiff that the piece of timber protruded; in failing to keep the aisle safe for passage; and in failing to provide a safe place to walk.

The defendant filed a general demurrer on the ground that the petition failed to allege a cause of action, and further on the ground that the petition showed on its face that the plaintiff was not in the exercise of ordinary care for her own safety.

The plaintiff amended her petition by striking therefrom the allegation that she was looking up under the mezzanine and therefore did not see the timber.

The court entered an order overruling defendant's general demurrer, to which order the defendant excepted and brings the case here for review. Counsel for both parties agree that the only issue presented for review is whether the plaintiff, as a matter of law, failed to exercise ordinary care for her own safety.

A. Paul Cadenhead, Nall, Sterne, Miller, Cadenhead & Dennis, Atlanta, for plaintiff in error.

Wm. P. Holley, Jr., Atlanta, for defendant in error.

GARDNER, Presiding Judge.

Counsel for both parties make the statement that the general rule of law is recognized to the effect that negligence, contributory negligence, proximate cause, and failure to exercise care for one's own safety are generally questions of fact to be determined by the jury. And further, that there are some instances in which this question must be determined as a matter of law. Then counse...