Opinion
39950.
DECIDED FEBRUARY 15, 1963. REHEARING DENIED FEBRUARY 28, 1963.
Action for damages. Newnan City court. Before Judge Mathews.
Glover Davis, Smith, Kilpatrick, Cody, Rogers McClatchey, Barry Phillips, Thomas E. Joiner, for plaintiff in error.
Sanders Mottola, Willis G. Haugen, contra.
Allegations in the petition that plaintiff, as a result of the distractions of a crowd of people in which she walked and of brightly colored signs posted in a nearby window of the defendant, was injured when she tripped on the supports of a sidewalk sign maintained by defendant in front of its store, raise a jury question, and a general demurrer was properly overruled.
DECIDED FEBRUARY 15, 1963 — REHEARING DENIED FEBRUARY 28, 1963.
Plaintiff in this action alleged that she was injured when tripped by the supports for a sign negligently placed and maintained by defendant on the sidewalk in front of its store. She alleges that the incident occurred on a Friday afternoon when the store and the sidewalk in front of it were crowded with shoppers, that the crowd on the sidewalk was such that she walked immediately behind others and shoulder to shoulder with those to either side, and that the distraction of the crowd as well as of brightly colored advertising posted on the store window brought about her tripping on the sign supports which she did not see. To the overruling of a general demurrer to the petition defendant excepts.
The petition here is strikingly like that in Redding v. Sinclair Refining Co., 105 Ga. App. 375 ( 124 S.E.2d 688). The only substantial difference that we can see is that in Redding it was alleged that the placing of the sign on the sidewalk was negligence per se under the provisions of a city ordinance. Here there is no ordinance. But we think, under the facts alleged, that whether it was negligence as a matter of fact so to place and maintain the sign is for the jury. The distinction between the situation here and parking lot cases, such as McMullan v. Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420); Ely v. Barbizon Towers, Inc., 101 Ga. App. 872 ( 115 S.E.2d 616); McHugh v. Trust Co. of Ga., 102 Ga. App. 412 ( 116 S.E.2d 512); and Carmichael v. Timothy, 104 Ga. App. 16 ( 120 S.E.2d 814) is readily apparent. In none of those cases was the distraction of a crowd, signs on store windows, etc. involved, nor was the injury complained of one that might have been reasonably foreseeable by those who owned or maintained the parking lots. We think that here the defendant, from its knowledge that crowds of people gather in the area where the sign was placed — which it must have had from past experience — was sufficient to bring within the range of foreseeability the likelihood that some one of them might be tripped by the sign supports, and a jury may well conclude that the defendant should have anticipated it. The facts place the case in a category close to that of National Bellas-Hess Co. v. Patrick, 49 Ga. App. 280 ( 175 S.E. 255); McCrory Stores Corp. v. Ahern, 65 Ga. App. 334 ( 15 S.E.2d 797); Tinley v. F. W. Woolworth Co., 70 Ga. App. 390 ( 28 S.E.2d 322); Lane Drug Stores, Inc. v. Story, 72 Ga. App. 886 ( 35 S.E.2d 472); Delay v. Rich's Inc., 86 Ga. App. 30 ( 70 S.E.2d 546); Moore v. Kroger Co., 87 Ga. App. 581 ( 74 S.E.2d 481); and Rich's, Inc. v. South, 91 Ga. App. 487 ( 85 S.E.2d 774), but as Judge Custer pointed out in Redding, supra, the distraction calculated to divert attention from the impending peril lifts it out. See Glover v. City Council of Augusta, 83 Ga. App. 314 ( 63 S.E.2d 422); Stanfield v. Forrest Five c. Stores, 95 Ga. App. 739, 741 ( 99 S.E.2d 167) and citations. If there had been no distraction here, or if the jury should not find it to have existed, the conclusion seems inescapable that the distinction would fade away.
It is likewise a jury question as to whether the plaintiff was in the exercise of ordinary care for her own safety when she suffered the injury. Big Apple Super Market of Rome v. Briggs, 102 Ga. App. 11 ( 115 S.E.2d 385); and Redding, supra.
The overruling of the general demurrer was proper.
Judgment affirmed. Felton, C. J., and Russell, J., concur.