Opinion
33066.
DECIDED JUNE 7, 1950.
Damages; from Richmond Superior Court — Judge G. C. Anderson. March 3, 1950.
C. Wesley Killebrew, Fulcher Fulcher, for plaintiff in error.
Congdon, Harper Leonard, contra.
The petition did not show that the defendant as a matter of law was not negligent or that the plaintiff was as a matter of law guilty of such negligence as would bar a recovery by her. The court did not err in overruling the demurrers to the petition.
DECIDED JUNE 7, 1950.
Mrs. Jennie R. Ellis sued W. E. Murphey for injuries sustained by reason of the alleged negligence of the defendant. The amended petition alleged substantially: that the defendant was the owner and occupier of a certain building in the City of Augusta where he conducted a curb market for the sale of produce and groceries to the general public; that on or about January 19, 1949, plaintiff was shopping at this market and, after purchasing some vegetables from the display at the curb, started to enter the store proper to purchase some groceries; that at the opening to the store there were two large heavy swinging doors, which to close swing together with nothing between them; that customers entering the store are required to use the door on the right because the other door is reserved for customers leaving the store after they have paid for their purchases; that at said time and place, the door for the use of customers leaving the store was retained open and the door for use by customers entering the store was closed; that to enter the store proper petitioner had to push open the closed door, and there being no knobs on such door and petitioner carrying in her left hand the purchases made at the curb, she was forced to place her right hand against the door to open it; that plaintiff placed her right hand against said door at a point approximately four feet, eight inches from the bottom of said door, as measured along the edge thereof, and in such a manner that the second finger of her right hand apparently extended approximately one-half inch over the edge of such closed door; that with plaintiff's hand in such position, the open door on the other side of the entry, for reason unknown to plaintiff because they were peculiarly within the knowledge of the defendant, suddenly, and without warning to petitioner, closed, crushing plaintiff's second right finger between two doors, there being less than one-half inch space between said doors after they had swung together; that there was not sufficient clearance between said doors to provide a safety margin for the protection of customers going through said doors in the ordinary course of business; that neither plaintiff nor any other customers entering the store possibly could have observed that there was no safety margin between said doors for the reason that even should they desire to take the extraordinary care to investigate, it would not be permitted because at the time of plaintiff's entry the other swinging door was open and its side of the entry was reserved for customers leaving the store; that not only were there no knobs on the door but no signs instructing customers where to place their hands; that neither defendant nor his agents warned plaintiff that it would be unsafe to place her hand at certain places on said door to push it open, although defendant had actual notice that said heavy doors were constructed so that they came together with nothing between them, and there were no instructions to customers about placing their hands against the door; that these conditions rendered the premises and approaches thereto unsafe; that defendant, knowing that the heavy swinging doors were so constructed that they would come together with nothing between them, failed to equip the doors with any safety device or to warn his customers that the failure to remedy this condition or to warn the customers, rendered the premises and approaches unsafe because there was no other means of entering the door save by pushing open the closed swinging door on the right of customers entering, and that defendant was charged with knowledge that customers would have to push their hands against the door to open it; that if improperly retained, the other door would close, and if it did, then lack of any space or protective material, such as the customary rubber strips on the inner edges of the doors, would result in the doors crushing fingers of customers, just as plaintiff's finger was crushed; that these defects could have been discovered and remedied by the exercise of ordinary care on the part of the defendant; that after her finger was crushed between said doors, she stood there with her finger bleeding severely, and that neither defendant nor any of his employees offered to give her any assistance and that she was taken to a physician by her companion; that she was damaged by reason of the aforesaid negligence of the defendant proximately causing her injuries. The defendant renewed his general and special demurrers to the amended petition and the court overruled the demurrers, and the defendant excepted.
Questions of negligence, proximate cause and contributory negligence are all questions for determination by a jury except in clear and indisputable cases. Larkin v. Andrews, 27 Ga. App. 685 ( 109 S.E. 518). This is not such a case. This court cannot on the pleading in this case say as a matter of law that the defendant was without negligence or that plaintiff was negligent and that such negligence was the proximate cause of her injuries. The petition alleges negligence on the part of the defendant in maintaining the doors with insufficient clearance between them upon closing, without protective material or devices, without knobs and without instructions to the customers on how to safely open the doors, thereby allegedly creating an unsafe approach to the premises. A jury may be authorized to find that under the circumstances the defendant might reasonably have anticipated that an injury might result from such maintenance and that such constituted negligence on his part and was the proximate cause of the injuries. A jury may be authorized to find under the facts alleged, notwithstanding the contention that the plaintiff was negligent in placing her hand upon the door in such a manner that it would be caught between the doors upon their closing, that in the absence of a knob or handle, or instructions in their absence, the plaintiff was justified in so placing her hand upon the door in the manner she did in an effort to open it and that the absence of the knob or handle or instructions was a negligent maintenance of the approach to the store part of the premises. On the other hand, a jury may be authorized to find that it was not negligence to so maintain the doors, or that even though the defendant was negligent, such negligence could have been discovered and the consequences thereof avoided by the plaintiff in the exercise of ordinary care and that her failure to do so was the sole proximate cause of her injuries. Too, a jury may be authorized to find that defendant was negligent and that his negligence was the proximate cause of the injuries but that plaintiff was also guilty of negligence, but in an amount less than defendant, and frame a verdict based on the comparative negligence doctrine. The petition does not show, and it cannot be legally inferred therefrom, that plaintiff knew these were swinging doors that were always kept closed, and had it so shown, she would have been precluded in this action, but she expressly alleges that the door which closed upon her finger was retained open as she was attempting to open the closed door and that for some reason unknown to her the opened door suddenly and without warning closed, mashing her finger. The petition in Whitehead v. Southern Bell Tel. c. Co., 37 Ga. App. 775 ( 141 S.E. 922), cited by the plaintiff in error, alleged that one of two swinging doors to a telephone booth which allegedly struck and injured plaintiff as she was sitting on a stool at a counter in one of the defendants' stores swung outward a maximum of 4 or 5 inches and struck plaintiff after being slammed to by a user of the telephone booth, and the court held that the defendants could not have reasonably anticipated that customers sitting in close proximity to the booth would be knocked over and injured by the opening and closing of such doors. It can be clearly seen that that case is distinguishable upon the facts from the instant case. After much research this court found many cases in which a door had closed upon and injured the fingers or hand of one who had placed his hand upon a door jamb for various reasons but none in which a person's fingers or hand had been caught between two swinging doors while attempting to open one of the doors, as in the instant case. The closest case found to the present case as to the facts involved is that of Carr v. W. T. Grant Co., 188 Minn. 216 ( 246 N.W. 743). There the defendant operated a store in the City of Minneapolis. During the winter it installed a vestibule at one of its entrances. The doors leading from the street into the vestibule swung both ways, as did the doors leading from the vestibule into the store. The vestibule was so narrow or shallow that when the outside doors were swung in and the corresponding vestibule doors were swung out at the same time they struck against each other, and overlapped six inches if swung fully towards each other. The plaintiff entered the store for lunch, had been served, and as he passed out through the vestibule door a woman and a small girl were about to pass out the outer door as it swung in. Attempting to aid the woman, who had bundles in her arms, plaintiff took hold of the outer door to hold it open while the woman and child passed out onto the street. At that instant someone, in passing from the store into the vestibule, swung the vestibule door out, catching or striking plaintiff's hand as he had hold of the outer door, thereby permanently injuring plaintiff's finger. In affirming a verdict for the plaintiff, the court said: "It seems clear to us that it was for the jury to say whether doors, so placed in this store that in their ordinary use they swung against each other in such a manner as likely to catch and injure those passing through, were reasonably safe for the purposes intended. If not, defendant could be held negligent for so maintaining them. Connected with the contention that the way these doors were maintained did not show negligence, is the claim that plaintiff was guilty of contributory negligence in placing his hand where the vestibule door could strike it. The injury did not come from the door which he was holding open or from any jamb or opening into which it swung. It came from the vestibule door behind him and of the danger from which he had no knowledge, it being his first or second visit in the store. In our opinion defendant's negligence, as well as plaintiff's contributory negligence, was for the jury and not for the court."
The court did not err in overruling the demurrers to the petition.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.