Summary
In Covington v. S. H. Kress Co., 102 Ga. App. 204 (115 S.E.2d 621), also relied upon by the defendants, the alleged causative fact, and held so as a matter of law, is the action of another customer in opening a door with great violence and force.
Summary of this case from Willis v. ByrdOpinion
38324.
DECIDED JULY 15, 1960.
Action for damages. Fulton Superior Court. Before Judge Pharr. February 2, 1960.
O. Lee White, for plaintiff in error.
Hurt, Gaines, Baird, Peek Peabody, W. Neal Baird, Joe E. Freeman, Jr., contra.
Since the petition shows on its face that the negligence of the defendant, if any, was not the proximate cause of the plaintiff's injuries and since no circumstances are alleged which create a duty on the part of the defendant to interfere so as to prevent probable injury from the conduct of another customer, the court did not err in sustaining the general demurrer and dismissing the petition.
DECIDED JULY 15, 1960.
Mrs. Inez Covington filed her petition in Fulton Superior Court against S. H. Kress Company seeking to recover damages for injuries sustained by her in a fall down a stairway adjacent to the exit of the defendant's dime store. The petition alleged in substance that the defendant company maintained in its dime store double doors used for both exit and entrance to the premises, each door being three feet wide and swinging both inwardly and outwardly; that four feet inside the store was a flight of five steps leading upward from a floor where merchandise was displayed and sold; that there was no handrail between the doorway and the stairtop; that the plaintiff, an invitee, ascended these steps on her way out of the store and was crossing the four-foot space between the stairtop and the right-hand door when said door was opened violently and with great force by another customer entering the store, hurling the plaintiff back down the steps and causing various described injuries; that it was dark outside and the electric lights inside the doorway were not burning at the time so that the plaintiff by the exercise of ordinary care could not have seen other incoming customers approaching. The petition alleges negligence on the part of the defendant company in failing to provide separate passages for incoming and outgoing customers; in failing to maintain a handrail at any point between the stairtop and the double doorway; in arranging the doors in such a manner as to swing three feet over and across the 4-foot space between the doorway and the stairtop; in failing to maintain the light fixtures inside the doorway in working order in failing to maintain its premises in reasonably safe condition for use by petitioner as an invitee.
Error is assigned on the order of the court sustaining the defendant's general demurrer to the petition.
"One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable." Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 438, 440 ( 103 S.E.2d 138) and cit. "The general test in such cases is not whether the injurious result or consequence was possible, but whether it was probable; that is, likely to occur according to the usual experience of persons." Whitaker v. Jones, McDougald, Smith, Pew Co., 69 Ga. App. 711, 716 ( 26 S.E.2d 545).
If the conduct of third persons or customers is such as to cause any reasonable apprehension of danger to other customers or invitees because of such conduct, it is the duty of the proprietor to interfere to prevent probable injury; and a failure so to interfere, and consequent damage, will subject such proprietor to an action for damages for such negligent failure to prevent the injury. This duty of interference on the proprietor's part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger. Great A. P. Tea Co. v. Cox, 51 Ga. App. 880 (2, 3) ( 181 S.E. 788).
The petition showed that while the plaintiff was leaving the defendant's dime store the swinging door thereto "was violently and forcibly thrown open inwardly toward and against petitioner, violently and with great force, throwing and knocking and hurling petitioner" down a nearby stairway. Under the circumstances alleged in the petition, the violent and forcible opening of the door so as to hurl the plaintiff down the stairway was the sole proximate cause of her injuries. No facts are alleged which show that such danger was apparent or reasonably anticipatable. Since the petition shows on its face that the negligence of the defendant, if any, was not the proximate cause of the plaintiff's injuries, and since no circumstances are alleged which create a duty on the part of the defendant to interfere so as to prevent probable injury from the conduct of another customer, the court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Nichols and Bell, JJ., concur.