Opinion
33493, 33494.
DECIDED OCTOBER 25, 1951.
Action for damages; from Fulton Superior Court — Judge Andrews. January 15, 1951.
John L. Westmoreland, John L. Westmoreland Jr., for plaintiffs.
Neely, Marshall Greene, W. Neal Baird, for defendant.
Where, in a department store to which the public is invited to do business, the top and edge of a stairway landing, which is used by the customers of the store, is covered with a metal strip, which through long use has become worn down, smooth, slick, slippery, dangerous and unsafe for use by the customers of the store, it is a question for the determination of the jury whether such department store in the exercise of ordinary care for the safety of its customers in the store should have discovered and remedied such defective and dangerous condition; and, where a customer, although aware that the metal strip is worn down and smooth, but unaware of the danger of stepping upon such strip, steps upon the strip, slips, falls, and is injured, petitions in suits against the department store, by the customer for personal injuries and by her husband for loss of services and medical expenses, setting forth such facts, state causes of action and are not subject to general demurrer as affirmatively showing that the customer's knowledge of the defective strip imported knowledge of its unapparent danger, which she should have avoided in the exercise of ordinary care.
DECIDED OCTOBER 25, 1951.
Mrs. Ouida M. Townley brought an action for damages against Rich's Inc., in which the material allegations of the petition, as finally amended, were substantially as follows: (2) The defendant has injured and damaged the plaintiff in the amount of $3000. (3) The defendant is engaged in the operation of a business of selling merchandise in a building in the City of Atlanta, and maintains in said building steps leading from the main floor to the basement so that its customers may descend to the basement to examine and purchase articles sold there by the defendant. (4) On or about June 15, 1948, the plaintiff, at the invitation of the defendant, was in the defendant's store engaged in purchasing various articles. The plaintiff was on the main floor of the store and desired to go to the basement to purchase other articles. (5) The plaintiff had descended the first flight of stairs leading from the main floor to the basement of the defendant's store, holding onto the railing on the righthand side thereof, and had reached the landing midway to the basement. (6) The metal strip or covering at the top and on the edge of the landing midway to the basement appeared to be smooth, but not to such an extent that it would be dangerous to use it, and the plaintiff did not know and had no means of ascertaining the actual dangerous condition of said metal strip or covering. (7) At no time prior to the incident hereinafter referred to did the plaintiff have a full appreciation of the risk involved in using the landing and the flight of stairs leading from the landing to the defendant's basement. (7-a) The plaintiff proceeded on the landing to the point of descent from it to the basement, and as she prepared to descend the lower portion of the stairway and did actually attempt to take the first step off the landing, she was holding onto the railing on the righthand side thereof; however, the metal strip or covering at the top and edge of said landing was so worn down, smooth, slick, and slippery that suddenly and abruptly her feet slipped from under her, causing her to lose her balance and equilibrium and to fall violently and suddenly down and on the flight of stairs to the basement of the defendant's store. (8, 9, 10) The plaintiff suffered enumerated injuries. (11, 12, 13) As a result of the injuries she has suffered and does suffer great mental and physical pain, for which this suit is brought. (14) The negligence of the defendant was the direct and proximate cause of the injuries to the plaintiff. (15) The condition of the metal strip or covering as herein described rendered the steps and the landing in the defendant's store dangerous to persons using them, and the defendant had maintained the same in said condition for a considerable period of time, the exact length of which is 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 said metal strip was worn, smooth, slick, and slippery, and was dangerous and unsafe for the use of patrons in the store. (16) The defendant was negligent in the following particulars: (1) In failing to keep the stairway and metal strip in proper repair and in a safe condition. (2) In failing to discover that the metal strip had been worn smooth and in failing to replace the same. (3) In failing to warn patrons and customers of the store that the stairway was unsafe. (4) In failing to replace the metal strip so as to make the use of the stairway safe for patrons of the store.
The defendant filed general and special demurrers to the petition as finally amended. The special demurrers were not ruled on, but the following general demurrers were sustained: "(1) Because the petition as amended fails to state a cause of action against defendant. (2) Because the well-pleaded allegations of plaintiff's petition as amended show that plaintiff was not in the exercise of ordinary care for her own safety and that by the exercise of ordinary care she could have avoided the injuries alleged to have been sustained." The plaintiff excepted to that judgment.
C. G. Townley, the husband of Mrs. Ouida M. Townley, brought an action for loss of services and medical expenses in connection with the same accident upon which Mrs. Townley brought her action. The issues involved in the two cases are identical and the cases are consolidated here for decision.
Under the allegations of the petition, the plaintiff went into the store of the defendant as an invitee for the purpose of purchasing merchandise; and, while there, the defendant was liable to the plaintiff for injury occasioned by its failure to exercise ordinary care for her safety. The acts of negligence complained of were: the maintenance of a metal strip or covering at the top and edge of a stairway landing in the store — from which landing the plaintiff fell — in such a worn down, smooth, slick, and slippery condition as to make the use of the stairway by its customers dangerous and unsafe; the defendant's failure to discover and remedy this defect in the exercise of ordinary care, as the strip had been maintained in such a condition for a considerable length of time; and, in failing to warn its customers of the unsafe condition when, in the exercise of ordinary care, it should have known of the condition of the metal strip and the danger of such condition to its customers using the stairway.
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 that 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.
With even greater insistence than was urged on the question of the defendant's negligence, which was by no means conceded, counsel for the defendant contend that the allegations of the petition subject it to general demurrer by showing affirmatively that the plaintiff could have avoided her injury by the exercise on her part of ordinary care. In reaching a decision upon this question, one must keep in mind that the question of whether or not the plaintiff was in the exercise of ordinary care under the circumstances is purely a matter of defense; and unless the allegations of the petition affirmatively show that the plaintiff did not exercise ordinary care to discover the negligence of the defendant, and, after discovering it, exercise due care to avoid the consequences thereof, it must be held, on general demurrer, to be a question peculiarly for the determination of the jury on the evidence adduced at the trial. Conceding that, construed most strongly against the plaintiff, the petition may be said to allege that the plaintiff's vision was not defective, the stairway was well lighted, was provided with an adequate handrail, and that the plaintiff saw the defective condition of the step — that is, she saw that it was worn down and smooth — she alleged that, although the metal strip appeared to be smooth, it did not appear to be so smooth as to be dangerous to use it, and she did not know and had no means of ascertaining its actual dangerous condition and had not a full appreciation of the risk involved in using the stairs. Under this state of the pleadings, the petition does not affirmatively show that the plaintiff in the exercise of ordinary care should have avoided the defendant's negligence. To paraphrase this court's language in Firestone Service Stores v. Gillen, 58 Ga. App. 782, 786 ( 199 S.E. 853), if knowledge of the worn-down, smooth condition of the metal strip was knowledge of specific defects, and the plaintiff had knowledge of these particular defects, and yet had no knowledge of the particular, unapparent, dangerous condition connected therewith which occasioned the injury ( Samples v. City of Atlanta, 95 Ga. 110, 22 S.E. 135), knowledge of such defects does not necessarily import knowledge of a dangerous condition of such stairway. We again say that "knowledge of defect" should not be confused with "knowledge of danger." Mathis v. Gazan, 51 Ga. App. 805, 808 ( 181 S.E. 503), and whether or not the plaintiff in the instant case had knowledge of the danger present in using the stairway is a question for the jury.
None of the cases cited by counsel for the defendant in error authorizes or requires a ruling different from the one here made. The decision in each of those cases turned upon the allegations of each particular petition.
The court erred in sustaining the demurrers and in dismissing the petitions.
Judgments reversed. Gardner and Townsend, JJ., concur.