Rothschild v. First Nat. Bank Of Atlanta

• Decision Date: 07 November 1936
• Docket Number: No. 25477.,25477.
• Citation: 54 Ga.App. 486,188 S.E. 301
• Parties: ROTHSCHILD. v. FIRST NAT. BANK OF ATLANTA.
• Court: Georgia Court of Appeals

54 Ga.App. 486

188 S.E. 301

ROTHSCHILD.

v.FIRST NAT. BANK OF ATLANTA.

No. 25477.

Court of Appeals of Georgia, Division No. 1.

Nov. 7, 1936.

Syllabus by the Court.

The court erred in sustaining the general demurrer and in dismissing the action.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by Flora Rothschild against the First National Bank of Atlanta. To review a judgment for defendant, plaintiff brings error.

Reversed.

Hewlett & Dennis, Herbert J. Haas, Joseph F. Haas, and J. Kurt Holland, all of Atlanta, for plaintiff in error.

Neely, Marshall & Greene and W. Neal Baird, all of Atlanta, for defendant in error.

GUERRY, Judge.

The present writ of error brings before this court the judgment of the court below sustaining a demurrer to the petition of Mrs. Rothschild brought against the First National Bank for alleged personal injuries sustained by her because of certain acts of negligence of the defendant, and a consequent order of dismissal of the petition. According to the allegations of the petition, Mrs. Rothschild, at the time of the injury and many years prior thereto, was an employee of the firm of Haas & Haas. This firm occupied several offices in the First National Bank building as a tenant of the defendant. Under its lease contracts, the defendant retained complete control over the building and offices for the purpose of maintenance and repair, and maintained a large crew of persons for the specific purpose of keeping the building clean and in good repair at all times. These employees, among other duties performed by them, washed windows in the offices, and cleaned and waxed the floors of the offices. Mrs. Rothschild, on a certain day, entered one room of the office space occupied by her employer to close a safe therein. After closing this safe, she turned to leave it, when her foot slipped from under her, causing her to fall. She sustained named serious injuries. The petition set out further, "that the floor in the office in which peti-tioner fell consists of wooden floor boards, and that a part of the floor on which your petitioner slipped had become out of repair and was worn slick, and was partly covered with a thick mass of a greasy substance which consisted of an accumulation of oils and greases which the defendant had used and applied on said floor over a period of years. Over said worn parts, and over said greases and oils, your defendant had allowed and permitted said floors to be waxed by its employees with a floor wax. That the combination of the three named conditions, namely, the worn condition of the floor, the accumulation of oils and greases, and the application of wax over these greases, any one of which conditions was sufficient in itself to. make the floor unsafe, and all of which conditions were known to the defendant, rendered the floor very slick and dangerous to walk upon." "That the floor at the place where she fell, from a casual inspection, only looked to her as if the varnish had worn off and there was nothing which would indicate to her that it was slick, slippery, or in anyway dangerous to walk upon, and said condition could not have been discovered by her in the exercise of that degree of care which the law imposed on her, but could have been known to defendant by the exercise of ordinary care; that the slippery condition aforesaid was unknown to her."

Counsel for defendant seem to concede that the petition sets out a good cause of action except, as they contend, the allegations show that plaintiff was not in the exercise of ordinary care for her own safety, and for this reason they hold that the demurrer was properly sustained. In coming to any conclusion upon this question, it is necessary to keep in mind that the question whether or not plaintiff was in the exercise of due care under the circumstances, is purely a matter of defense, and unless the allegations of her petition affirmatively show that she did not exercise ordinary care to discover the negligence of the defendant, and, after discovering same, exercise due care to avoid the consequences thereof, it must be held, on general demurrer, to be a question peculiarly for determination by the jury, on the evidence developed at the trial. 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 lit tle 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. "Ordinary care, " "acts of an ordinary prudent man, " are variable terms, according to the situation upon which they operate. It has therefore been found by courts to be justifiable to leave all such questions for determination by the jury, unless it be perfectly plain and obvious from all human experience that no ordinary intelligent person would have sustained injury under the circumstances, unless he was careless of his own safety. It is certainly true that one must use ordinary care in using his or her sense of sight to observe where he or she walks. This is elementary and is a necessary act of self-preservation. We can very well see how, where one steps into a hole and is caused to fall and sustains injury, that no recovery should be had in these circumstances against the party whose neglect caused the hole, where it appears that the hole was open and could have been seen if the sense of sight had been used. This presents a case of pure careless vision. Such was the case of Mills v. Barker, 38 Ga.App. 734, 145 S.E. 502. A similar case of careless sight is Jones v. Asa G. Candler, Inc., 22 Ga.App. 717, 97 S.E. 112, 114, where plaintiff tripped over a pile of lumber in the hall of defendant's building. The court took cognizance that a pile of lumber under the conditions alleged could be easily seen, and said that "the stumbling over the small pile of lumber against the wall seems to have been due to her own carelessness in hurriedly and without looking coming...