Shannon v. Bigelow-Sanford Carpet Co.

• Decision Date: 04 October 1957
• Docket Number: No. 36811,BIGELOW-SANFORD,No. 2,36811,2
• Citation: 100 S.E.2d 478,96 Ga.App. 458
• Parties: SHANNON v.CARPET COMPANY, Inc
• Court: Georgia Court of Appeals

Page 478

100 S.E.2d 478

96 Ga.App. 458

SHANNON v. BIGELOW-SANFORD CARPET COMPANY, Inc.

No. 36811.

Court of Appeals of Georgia, Division No. 2.

Oct. 4, 1957.

Syllabus by the Court.

The petition set out a cause of action and the trial court erred in sustaining the general demurrer.

E. P. Shannon sued Biglow-Sanford Carpet Company, Inc., for damages on account of personal injuries. His petition made substantially the following case: On the morning of November 2, 1956, the plaintiff was transacting business with the defendant in its offices at Summerville, Georgia, and was talking with one of the defendant's employees whose name is unknown to the plaintiff, but whose desk in said office was nearest the entrance thereof; '3. The entrance to said office consists of what appear to be double glass doors whose stiles and rails consist of metal strips approximately two inches wide. There is actually only one door, and the other fixture adjoining it which appears to be another door, is merely a plate-glass panel framed by said metal strips. All of said metal strips which support said door and glass panel appear to be of steel or aluminum, and to be of great strength. 4. After conversing with said employee a few minutes, plaintiff turned to leave by way of the above-described entrance, through which he had come. He reached said door and raised his hand to push it open, when said employee called to him and asked him another question. This diverted plaintiff's attention from the door so that his hand pressed against that part of the metal frame of the above-described plate glass panel alongside the swinging stile of the door, instead of the swinging stile of the glass door as he had intended. The pressure of his hand against said frame was very gentle, and he was at the same instant turning to face said employee. The said door swung outwardly. 5. Immediately upon his pressing against said metal strip, the upper portion of the glass paneling which it enclosed shattered and fell, and sharp pieces of broken plate glass fell from said panel and inflicted' the injuries complained of.

The plaintiff alleged that the defendant was negligent in that it failed to provide an entrance to its offices which was safe for the plaintiff and other invitees; in that it failed to provide a frame for the door which was the entrance to its office and which was safe for usual and ordinary use by the plaintiff and other invitees and persons known to be on said premises; in that it maintained the glass panel in the metal frame adjacent to the door too loosely and insecurely in said frame for safety in normal and reasonable use; in that the vertical part of the metal frame of the said paneling was too weak for reasonable and normal usage connected with the entrance which condition could have been discovered by the defendant by casual ordinary inspection; that the defendant's employee was negligent in diverting the plaintiff's atention, thus causing him to push against the weak and insufficient metal frame instead of the stile of the glass door; that by maintaining the entrance of the appearance described in the petition the defendant entrapped the plaintiff into an assumption that either installation was a door which could have been used in safety; that it failed to make ordinary or casual inspection of the entrance to discover defects therein; and, that it failed to warn the plaintiff of such defects, and the plaintiff alleged that these acts of negligence each combined with the other as the sole, direct and proximate cause of his injuries and damages. He then set forth facts alleging and showing the damages sustained by him as the result of the injuries and prayed for a judgment in the amount of $1,111.

The defendant filed a general demurrer in which it contended that the petition failed to set forth a cause of action and that the petition affirmatively showed on its face that the sole proximate cause of the plaintiff's injuries was his failure to exercise ordinary care. The trial court sustained these demurrers and dismissed the petition and the exception here is to that judgment.

A. Cecil Palmour, Trion, for plaintiff in error.

Matthews, Maddox, Walton & Smith, Oscar M. Smith, Rome, for defendant in error.

CARLISLE, Judge.

While a petition must be construed on general demurrer most strongly against the plaintiff, this rule of construction is applicable only where the allegations are ambiguous and open to construction. Wolf v. Arant, 88 Ga.App. 568, 570, 77 S.E.2d 116. A rule which is equally as well established as the foregoing is that on general demurrer the facts alleged in the petition must be taken as true, and unless an inference of contributory negligence on the part of the plaintiff is demanded, that question is one for the jury. Doby v. W. L. Florence Construction Co., 71 Ga.App. 888, 889 (5), 32 S.E.2d 527. This last rule is but a branch of the broad general rule to the effect that questions of diligence and negligence, including contributory negligence, are questions peculiarly for the jury and they ought not to be decided on general demurrer except in plain, palpable and indisputalbe cases. De Golian v. Faulkner, 74 Ga.App. 866, 869, 41 S.E.2d 661; Atlanta & West Point R. Co. v. McDonald, 88 Ga.App. 515, 519, 76 S.E.2d 825. The allegations in the instant petition are not ambiguous and there is no question that the plaintiff was, under the...