Opinion
42688.
ARGUED APRIL 5, 1967.
DECIDED MAY 5, 1967.
Action for damages. Richmond Superior Court. Before Judge Killebrew.
Fulcher, Fulcher, Hagler, Harper Reed, J. Walker Harper, for appellant.
Bell Bell, John C. Bell, D. Field Yow, for appellee.
Where there are no averments explaining the plaintiff's failure to see and avoid tripping over an obstruction which injured him, construing the petition most strongly against the pleader, as we must on general demurrer, the only reasonable inference is that the obstruction could have been seen and the plaintiff's injury resulted solely from his failure to exercise ordinary care.
ARGUED APRIL 5, 1967 — DECIDED MAY 5, 1967.
Harry M. Laird brought an action for personal injuries in Richmond Superior Court against Herbert E. McGinty d/b/a McGinty Hardware Paint Company. The petition alleged that: the plaintiff went into defendant's place of business to make a purchase from the defendant; after doing so, he proceeded to go out the front door of defendant's hardware store onto the sidewalk immediately in front of the store; the plaintiff opened the front door and, in the process of walking onto the street, as he stepped from the front door onto the sidewalk he tripped over a lawn mower belonging to the defendant which the defendant had placed on the sidewalk in front of the store and which obstructed the plaintiff's pathway; the front doors are swinging doors so hung that while facing them from inside the store the door hinges on the right and the left side swings out into the sidewalk; the defendant placed the lawn mower immediately to the left of the swinging door so as to obstruct the path of customers; as a result of the defendant's placing the lawn mower on the sidewalk in front of his hardware store and next to the swinging door, the plaintiff fell over the lawn mower and was injured; the defendant placed no warning signs to the effect that the walkway was obstructed; the plaintiff had no actual knowledge that the defendant placed the lawn mower in front of the door in such manner as to cause the plaintiff to be channeled into the lawn mower by the swinging door and, by the exercise of ordinary care, the plaintiff could not see the obstruction placed in the path of customers and the plaintiff.
The petition also alleged the defendant was negligent in the following particulars: (1) in obstructing the sidewalk in front of the hardware store; (2) in placing the lawn mower in the path of customers causing the plaintiff to trip and fall over it; (3) in placing the lawn mower at the exit of the store; (4) in failing to place warning signs. The petition sought damages in the amount of $34,505.35 for injuries sustained by the plaintiff.
The defendant's general demurrer to the petition was overruled and the defendant appeals to this court.
The plaintiff seeks to recover for injuries sustained as a result of his falling over a lawn mower left at the entrance way of the defendant's store. If the plaintiff should have seen the obstruction and avoided it he may not recover because he would not have been in the exercise of ordinary care for his own safety. Lane Drug Stores v. Story, 72 Ga. App. 886 ( 35 S.E.2d 472); Huey v. Nix, 94 Ga. App. 498 ( 95 S.E.2d 339). Therefore, we consider the question as to whether the plaintiff should have seen the obstruction or shows sufficient excuse for the failure not to observe it.
The petition alleges that the plaintiff had no actual knowledge that the defendant placed the lawn mower in front of the door in such manner as to cause the plaintiff to be channeled into the lawn mower by the swinging door and, by the exercise of ordinary care, the plaintiff could not see the obstruction placed in the path of customers and the plaintiff. In Tinley v. F. W. Woolworth Co., 70 Ga. App. 390, 392, 394 ( 28 S.E.2d 322) where the plaintiff sought to recover for injuries sustained from falling over store scales the petition alleged: "the plaintiff did not know, nor could she, by the exercise of ordinary care and diligence, have discovered that the said scales were in said passageway; that at the time and place complained of she was in exercise of ordinary care and diligence, and by the exercise of the same she could not avoid the consequences of the defendant's negligence." There the court held: "If she did not look where she was going, and the scales were clearly visible, and could easily have been seen by anyone who did look, she could not recover."
The averments of the petition contain nothing to show the plaintiff was distracted as in the case of Big Apple Super Market v. Briggs, 102 Ga. App. 11 ( 115 S.E.2d 385), or that he could not see the dangerous condition until it was too late as in Marshall v. Pig'n Whistle, 102 Ga. App. 526 ( 116 S.E.2d 671). There are no allegations from which it would be inferable that the plaintiff had any reason for failing to see and avoid the lawn mower. Hence, the allegations of the instant petition amount to no more than a conclusion of the pleader, without facts to support it.
The plaintiff contends that Chotas v. J. P. Allen Co., 113 Ga. App. 731 ( 149 S.E.2d 527) which, relying on Wynne v. Southern Bell Tel. Co., 159 Ga. 623 ( 126 S.E. 388), questioned and refused to follow numerous Court of Appeals decisions, is controlling here. Chotas dealt with injuries resulting from defects though patent not readily apparent even on close observation and held whether the failure to look constituted a lack of ordinary care on plaintiff's part was a jury question.
That a distinction exists between this class of case and that found in Chotas and Wynne has often been recognized by this court. As pointed out in Moore v. The Kroger Co., 87 Ga. App. 581, 583 ( 74 S.E.2d 487) there are numerous cases holding "that where the obstruction is in some way hidden, camouflaged, or intrinsically unsafe, the question of ordinary care in the plaintiff is for the jury, but where it is perfectly obvious and apparent, so that one looking ahead would necessarily see it, the fact that the plaintiff merely failed to look will not relieve him from the responsibility for his misadventure." The test is, as expounded in Miller v. Bart, 90 Ga. App. 755, 758 ( 84 S.E.2d 127), whether the "items of business equipment were of such a size as to be obvious and in a place where they were to be expected." If this be true then the plaintiff must show why he failed to observe the obstruction. See Kitchens v. Davis, 96 Ga. App. 30, 34 ( 99 S.E.2d 266), and Big Apple Super Market v. Briggs, 102 Ga. App. 11, 14, supra.
Here we have a lawn mower, certainly readily apparent to even a casual observer, placed at the entrance of a hardware store, presumably a place where such items of equipment are customarily kept and sold. There are no averments explaining the plaintiff's failure to see and thus avoid tripping over the lawn mower. Hence, construing the petition most strongly against the pleader, as held in McMullan v. The Kroger Co., 84 Ga. App. 195, 199 ( 65 S.E.2d 420), the only reasonable inference from the allegations of the petition is that the structure was such as could have been seen by the plaintiff in the exercise of ordinary care and the injury resulted from the failure on the plaintiff's part to exercise care for his own safety.
Judgment reversed. Jordan, P. J., and Deen, J., concur.