Robertson v. Liggett Drug Co., 33133

• Decision Date: 26 June 1950
• Docket Number: No. 33133,No. 2,33133,2
• Citation: 60 S.E.2d 268,81 Ga.App. 850
• Parties: ROBERTSON v. LIGGETT DRUG Co., Inc., et al
• Court: Georgia Court of Appeals

Page 268

60 S.E.2d 268

81 Ga.App. 850

ROBERTSON v. LIGGETT DRUG Co., Inc., et al.

No. 33133.

Court of Appeals of Georgia, Division No. 2.

June 26, 1950.

Syllabus by the Court

The petition set forth a cause of action for submission to a jury as to the defendant tenant for the maintenance of an unsafe, defective and dangerous obstruction and condition on the sidewalk in front of the building rented by it, same being a grill used to admit air into the basement of the building, and the trial judge erred in dismissing the petition as to the defendant tenant.

Mrs. G. W. Robertson brought suit in Fulton Superior Court against Liggett Drug Company, Inc., as tenant of Nat Kaiser Investment Company, against Nat Kaiser Investment Company, as landlord, and against the City of Decatur, a municipal corporation of said State, located in DeKalb County, in which she sought to recover damages of the defendants, as joint and several tort feasors, because of certain personal injuries which she set out in her petition were caused by the negligence of the defendants. In her petition, the plaintiff alleged that the Nat Kaiser Investment Company was the owner of a certain store building, fronting on Ponce de Leon Avenue, in the City of Decatur, which building this defendant had, previously to May 5, 1949, rented to the defendant drug store, and in front of this building there was a sidewalk, used by pedestrians to travel along said Ponce de Leon Avenue, a public street in Decatur; that there had been constructed on the sidewalk in front of this store 'by or at the direction of or for the benefit of the defendant' investment company 'an iron grating or grill, for the purpose of furnishing light and air to the basement of the building * * * and which iron grating or grill was used by said defendant drug store' in connection with its use and occupancy of that portion of said building which it operated as tenant; that this grill was around 27 inches wide and about 60 inches long and 'extends from the side of the building' about two and a half feet on-to said sidewalk; that the side or end of this grill facing eastwardly extended about one and a half inches above the level of the sidewalk and to a person, approaching from the east going west along the sidewalk, this grill 'had the appearance of being level with the sidewalk'; and that on said date the plaintiff was using this sidewalk and approached this drug store building from the east along Ponce de Leon Avenue, going in a westerly direction, when she tripped and stumbled on the raised portion or end of this grill and was precipitated violently to the hard pavement of the sidewalk, causing severe personal injuries to be sustained by her. The plaintiff further alleged that this grill, under the facts, being raised one and a half inches above the sidewalk on the eastern end thereof, constituted 'a defective, unsafe and dangerous condition to passersby lawfully using said sidewalk'; that 'the defective, unsafe and dangerous condition of the iron grating or grill was not known to her prior to the time of her injury' and due to the fact that same had the appearance of being level with the sidewalk such elevated condition of this end of said grill being joined with the sidewalk by a cement connection from the top to the sidewalk, 'and no warning thereof being given to persons using the sidewalk, constituted a hazard or trap for pedestrians'; and that this 'defective, unsafe and dangerous iron grating or grill' has existed as a part of this sidewalk in said city 'for several years and for such a length of time that the defendant, City of Decatur, knew or should have known of the defective, unsafe and dangerous condition of its sidewalk * * * had it been in the exercise of ordinary care and diligence.'

The plaintiff set up that the defendant drug store, the tenant, was negligent in maintaining and using this iron grill on said avenue in Decatur as a part of the premises leased by it from the owner, said investment company, 'in a defective, unsafe and dangerous condition and in such condition that it constituted a danger and hazard to pedestrians lawfully using said sidewalk', in maintaining and using this 'grill in such a careless and negligent manner as to constitute a hazard to pedestrians' in the public streets of said city; in 'failing to correct, repair, remove or remedy this defective iron grating or grill when such defective condition was known to this defendant or should have been known in the exercise of ordinary care, in carelessly and negligently obstructing and interfering with the lawful use of a public street and sidewalk in the City of Decatur * * * by the erection, maintenance, use and operation of a defective, unsafe and dangerous iron grating or grill upon said public sidewalk,' and 'in failing to warn petitioner of the defective, unsafe and dangerous condition of said public street and sidewalk * * * caused by the improper construction, maintenance, use and operation of said iron grating or grill'. It appeared from the petition that the plaintiff had presented her claim in writing to the city as required under Code, § 69-308. The defendant, Liggett Drug Co. Inc., interposed its general demurrer to the petition on the ground that 'the facts alleged against it are insufficient as a matter of law to constitute a cause of action.' The trial court sustained this demurrer and dismissed the plaintiff's petition and to this judgment the plaintiff excepts.

Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Sidney Haskins, Atlanta, for plaintiff in error.

T. J. Long, Atlanta, B. Hugh Burgess, Decatur, for defendants in error.

GARDNER, Judge.

There were no special demurrers interposed to this petition. The only question presented for determination by this court, therefore, is whether the petition set forth, as against a general demurrer, a cause...