Opinion
34836.
DECIDED OCTOBER 2, 1953.
Action for damages. Before Judge Paschall. Bartow Superior Court. August 25, 1953.
Nall, Sterne Miller, for plaintiff in error.
Davis Cullens, contra.
The petition stated a cause of action and the trial court committed no error in overruling the general and special demurrers.
DECIDED OCTOBER 2, 1953.
The defendant, Belk Gallant Company of Cartersville, Georgia, Incorporated, has brought this case to this court for review on exceptions to the trial-court's judgment overruling certain general and special demurrers to the petition of Mrs. Maude McCrary. The petition as finally amended is substantially as follows: 3. On May 5, 1951, at approximately 11:30 a. m., the plaintiff was a customer in the defendant's store and as such was an invitee. 4. She had gone into the defendant's store to shop for and purchase certain items of merchandise, had made her purchases, and was preparing to leave the store when she sustained certain injuries to her person. 5. The defendant's store is located in a two-story building. 6. At the time the plaintiff sustained the injuries complained of, the defendant was conducting its business of selling dry-goods and other merchandise on both the first and second floors of the building. 7. The defendant, in the operation of its business, maintained in its store steps leading from the first, or street, floor to the second floor for the use of its customers in passing from one floor to the other. 8. After the plaintiff had completed her purchases, she proceeded to the steps, and "as she prepared to descend said stairway and did actually attempt to take the first step from the second floor onto the first step of said stairway, and at a time when she was holding onto the railing of the right-hand side of said stairway . . . suddenly and abruptly her feet slipped from under her and caused her to lose her balance and equilibrium and to fall violently and suddenly down and on the said flight of stairs to the first landing thereof." 9. The floor immediately preceding the first step of the stairway, and the first step of the stairway, are made of wood and from continued use have become polished, round-edged, smooth, slick, and slippery, and there are no safety treads on either the steps or the floor area immediately preceding the steps. 10. The steps are from five and one-half to six feet "wide" (long?) and there is no center guardrail or handrail, and the side handrails are not within the reach of the defendant's customers from the center of the stairway or from the center of the entrance from the second floor to the stairway. (Paragraph 11 was stricken on demurrer.) 12. The condition of the floor and the steps, as described, made the area dangerous to persons using this area, and the defendant has maintained the area in such condition for a considerable period of time, the length of time being known to the defendant but unknown to the plaintiff, and the defendant knew, or in the exercise of ordinary care and diligence should have known, that the floor immediately in front of the stairway and the steps of the stairway were worn smooth, slick, and round-edged on both the outer edge of the floor and the steps, and as such were dangerous and unsafe for the use of the defendant's customers. 13. As a result of the defendant's negligence in maintaining the area in the above-described manner, the plaintiff slipped and fell upon the stairway with such violent force that she suffered a severely broken ankle and other enumerated injuries, all of which caused her to suffer severe and excruciating physical and mental pain. 14, 15, 16, 17, 18. As a result of her injuries she incurred enumerated expenses. 19. At the time she sustained the injuries here complained of, the plaintiff was in good health, was 61 years of age, and had a life expectancy of 13.82 years under the Carlisle Mortality Table. 20. The alleged injuries are permanent in nature. 21. In addition to the other alleged acts of negligence, the defendant was negligent in the following particulars: "(a) In failing to keep said stairway and second floor immediately adjacent thereto in a safe condition; (b) In failing to discover that the steps and the second floor area immediately adjacent thereto had been worn smooth and that the same had become slick and round-edged from continuous usage by the defendant's patrons and in failing to replace the same; (c) In failing to equip said steps and the second floor immediately adjacent to said stairway with safety treads of some type of material which would prevent the plaintiff and other patrons from slipping and falling in the manner above set out; (d) In failing to warn the plaintiff and other patrons and customers of the store that the above described area was unsafe. (e) [This paragraph was stricken on demurrer]; (f) In failing to have warning signs relative to the worn condition of the above described area; (g) In failing to keep and maintain the above described area in a safe condition." 22. The first step and the second floor immediately adjacent to the first step appeared to be smooth from wear, but it did not appear to be so smooth as to be dangerous to use, and the plaintiff did not know and had no means of ascertaining its actual dangerous condition, and as such she did not have a full appreciation of the risk involved in using the area, in that the defendant had failed to warn her of the aforesaid condition. 22A. The treads on the steps are pitched forward approximately one-fourth of an inch, the exact measurement of the pitch being unknown to the plaintiff, but well-known to the defendant. This pitched condition, together with the scooped-out, worn portions of the outer edge of the tread on the first step caused the tread to be slanted forward and sloped downward to such an extent that the outer edge of the tread of the first step was approximately one-half inch lower than the inner edge of the tread of the first step and, although the steps appeared to slant and slope slightly, they did not appear to slant and slope to such an extent as to be dangerous and unsafe to use by the plaintiff and she did not know and had no means of ascertaining the actual dangerous and unsafe condition and she did not have a full appreciation of the risk involved in using the area, in that the defendant had failed to warn her of its actual dangerous and unsafe condition. 22B. Immediately upon descending to the first step, the plaintiff's feet slipped upon the tread of the first step, thereby causing the injuries and damages herein complained of. 22C. Ben C. Gilreath is the owner of the building occupied by the defendant, and the defendant constructed the steps and stairway herein complained of and the defendant maintained the steps and stairway in said condition at the time of the plaintiff's injuries. 22D. The defendant was negligent in allowing the steps and second floor immediately adjacent thereto to become worn, slick, smooth, and round-edged on the outer edge of the tread, from long and continuous use, the exact length of time being unknown to the plaintiff but well known to the defendant, and this condition caused the plaintiff's feet to slip from under her and caused the injuries and damages herein complained of. 23. The defendant does not maintain and keep an elevator in the building, and the stairway, together with the approach thereto, is the only means provided by the defendant whereby the plaintiff and other patrons could descend from the second floor to the first floor of the defendant's store. 24. The plaintiff's vision was not impaired at the time of the injuries. 25. The defendant's negligence was the direct and proximate cause of her injuries. 26. The plaintiff brings this suit to recover for: (a) her hospital, medical and doctor bills; (b) her lost earnings; (c) her pain and suffering, past, present, and future; (d) her permanent injuries; (e) her permanently diminished capacity to labor.
The grounds of the demurrer which were overruled were the general demurrer and the following special demurrers: 3. Defendant demurs to paragraph 10 and moves that same be stricken because the same is irrelevant, immaterial, and prejudicial, because in paragraph 8, plaintiff alleges that she was holding onto the right-hand rail at the time of the occurrence. 5. Defendant demurs to paragraph 21 (c) and moves that same be stricken, because no rule of law or reason or requirement is shown that would impose upon defendant the duty of maintaining any particular type of stairway or materials in the construction of the steps. Defendant demurs to paragraph 23 and moves that same be stricken, because no rule of law or reason or requirement is shown as to why defendant would be required to maintain an elevator in said building.
1. The allegations of the petition in this case are so nearly identical with those of the petitions in the cases of Townley v. Rich's, Inc., 84 Ga. App. 772 ( 67 S.E.2d 403), that the petitions in those cases must have served as the prototype, if not the exact model, for the present petition. On the question of the sufficiency of the allegations as to the defendant storekeeper's negligence in that case, the court had this to say:
"The rule, that questions of diligence, negligence, contributory negligence, and proximate cause of an injury are peculiarly for the jury such that appellate courts will decline to solve them on demurrer except in palpably clear, plain, and indisputable cases, is so well known as to have become a postulate in the consideration of every negligence case on demurrer.
"Consequently, taking the allegations as true, as against the demurrer, the metal strip on the top and edge of the landing was worn down, smooth, slick, slippery, dangerous, unsafe, and was the proximate cause of the plaintiff's injuries; and, from the nature of the averments, we cannot say, as a matter of law, that the defendant was not negligent in failing, in the exercise of ordinary care, to discover and remedy the condition. As was said by Powell, J., in Mandeville Mills v. Dale, 2 Ga. App. 607, 612 ( 58 S.E. 1060), "Ordinary care and diligence, as applied to the keeping of premises in safe condition, is a very elastic term, varying the quantum of actual caution to be exercised, according to the nature of the use to which the property is devoted'; and whether the metal strip covering the top and edge of the landing had become defective, and whether the condition could have been discovered by proper inspection, were questions for the jury. Scott v. Rich's, Inc., 47 Ga. App. 548, 550 ( 171 S.E. 201); Macon Academy Music Co. v. Carter, 78 Ga. App. 37, 40 ( 50 S.E.2d 626); and citations." These principles enunciated in the Townley cases are sound and controlling on the present case. The fact that the metal strip became worn in those cases, and the wood of which the steps were constructed in the present case, constitutes no variance favorable to the defendant in the applicability of the principles of law. The petition in this case presents a question for a jury as to the defendant storekeeper's negligence.
Although the plaintiff alleges that her eyesight was not defective, that the first of the steps appeared smooth, and that the steps appeared to slant and slope slightly, and, under a proper construction of the petition (against the pleader), it must be assumed, in the absence of an allegation to the contrary, that the steps were properly lighted — the plaintiff also alleges that the stairway in question was her only means of egress from the second floor of the defendant's store, that she was holding onto the handrail at the time her feet slipped from under her, and that although the steps were slanting and sloping, polished, round-edged, smooth, slick, slippery, worn, and scooped-out, they did not appear to be dangerous to use and she had no means of ascertaining their actually dangerous condition. Under these circumstances alleged, we think that it does not affirmatively appear from the petition that the plaintiff was so contributorily negligent in using the steps as to preclude her recovery as a matter of law, but that the question must be resolved by a jury. Townley v. Rich's, Inc., supra, and citations.
2. None of the three special demurrers which were overruled is meritorious. The absence of a center handrail, the absence of an elevator, making it necessary for the plaintiff to use the steps in question, and the absence of safety treads on the steps, are allegations descriptive of the premises and the condition of the steps and to that extent are material to the plaintiff's cause of action.
The trial court did not, for any reason assigned, err in overruling the general and special demurrers.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.