Smith v. Swann , 73 Ga. App. 144 ( 1945 )

In my opinion this case is controlled by the decisions in Vaissiere v. J. B. Pound HotelCo., 184 Ga. 72 (supra), and in the same case in 54 Ga. App. 162 (supra). In that case a banquet was held in the dining room of the the defendant's hotel, where a temporary rostrum had been constructed about 12 inches above the floor and extended to within 2 1/2 feet of the wall, thus leaving a vacant space. A table was placed on the rostrum, and seats were placed for guests at the table so that their backs would be towards and near the edge of the rostrum. When the dinner ended, two guests occupying adjacent seats arose, and one of them, being obliged to step back slightly in order to avoid colliding with the other, stepped on the edge of the rostrum, slipped and fell, and thereby sustained the injuries sued for. The petition further alleged that she had not had occasion to examine the rostrum minutely and did not know that it did not extend all the way to the wall, nor did she see or know that she was seated near the edge of the rostrum. The defendant was alleged to have been negligent in the following particulars: (a) In failing to provide a reasonably safe place for the use of a guest at the banquet. (b) In failing to extend the rostrum all the way to the wall. (c) In failing to put a rope, banister, or other protection around the edge of the rostrum. (d) In failing to warn the plaintiff of her dangerous position in being seated with her back close to the edge of the rostrum. (e) In failing to warn her before she arose from the table of the danger of stepping on the edge of the rostrum. (f) In placing her chair so close to the edge of the rostrum that when she arose therefrom she naturally stepped upon the edge of the rostrum and fell. And the Supreme Court in that case in affirming the judgment of this court, held: "1. The allegations did not allege a case showing negligence of defendant. ExecutiveCommittee of the Baptist Convention v. Wardlaw, 180 Ga. 148 (178 S.E. 55), and dissenting opinion in Wardlaw v. ExecutiveCommittee of the Baptist Convention, 47 Ga. App. 595 (supra). . . The allegations showed that the plaintiff was obliged to step up to get on the rostrum. Construing the petition most strongly against the plaintiff, and there being no allegation that the room was not properly lighted, it will be assumed that the open space between the rostrum and the wall was obvious. Being so, she was bound to know of the danger of stepping off the edge of the rostrum when she stepped back to avoid striking her companion. In such circumstances her act in stepping on the edge of the rostrum and falling showed such want of ordinary care as would prevent a recovery. Code, § 105-603, as applied in Ball v. Walsh,137 Ga. 350 (73 S.E. 585). . . The ruling of the Court of Appeals to the foregoing effect, upon which error was assigned, was not erroneous, as contended, on the ground that the facts did not show as matter of law that the plaintiff could have avoided the injury by exercise of ordinary care, but on the contrary that they entitled the petitioner to a hearing before the jury on the question."

The Wardlaw case, supra, was first passed on by this court (47 Ga. App. 595), and headnotes 1 and 2 of the majority opinion read: "Where the owner or proprietor of premises, by invitation express or implied, induces others to come upon the premises for a lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe for such use. Taking as true the allegations of the plaintiff, who sought to recover damages for injury caused by falling down a step from a hallway into a room, the floor of which was below the level of the hallway, and which she alleged was `a deceptive, hidden pitfall, not in plain vision of the plaintiff,' and not seen by her, the petition was not subject to general demurrer on the ground that no cause of action was set forth." To that ruling Judge Jenkins dissented and said: "While, as has been so often held as to be almost axiomatic in this State, questions of the plaintiff's and of the defendant's negligence, and of the proximate cause of an injury, are peculiarly for the jury, and are not to be determined on demurrer except in plain cases, the petition in this case, under the foregoing rule, according to my view, failed to state a cause of action, and the court properly sustained the defendant's general demurrer. `Whatever may be the rule in other jurisdictions, it is the law of this State that the maxim res ipsa loquitur has no application to pleadings, and general averments of negligence can not be aided thereby; it is only a rule of evidence.' Fulton Ice Co. v. Pece, 29 Ga. App. 507 (6) (116 S.E. 57), and cit. Thus, the mere averment that the plaintiff fell would not aid the petition. There is no allegation that the place where the injury occurred was improperly lighted so that the 5-inch step would not have been plainly visible to the plaintiff or others who merely looked at the floor, . . that the plaintiff was suffering from bad eyesight or other infirmity known to the defendant." We realize that a dissenting opinion usually is immaterial and not subject to citation, but the above-quoted dissenting opinion was cited approvingly by the Supreme Court in the Vaissiere case, supra, and therefore is an exception to the general rule. The only case cited in the brief for the plaintiff in error is Wynne v. Southern Bell c. Co.,159 Ga. 623 (126 S.E. 388). That case was distinguished from the Vaissiere case by the Supreme Court holding in the latter case that "the facts of the case differ from those in the Wynne case, where the person was injured while descending a stairway of a building, on account of an apparent structural defect in the steps, but which was not obvious to the person descending the steps." There is a similar difference between the facts of the Wynne case and those of this case.

The case of Fuller v. Steyerman, 46 Ga. App. 830 (supra), is also distinguished from this case by its facts. In that case, the petition for damages was based upon the alleged fact that in the building where the plaintiff was injured while descending a stairway therein, the stairway was improperly and defectively constructed. The petition alleged that "the balustrade [of the stairway] flares outward from the steps before it reaches the bottom step, and in this way causes the false mental impression to one descending the stairway that the bottom step is reached before it is actually reached and thus causes such person to make a false step and fall. . . The bottom step of the stairway is painted white and is 13 inches longer than the other steps, while the other steps are of a dark color, and this [bottom] step being made a different color causes the false mental impression to one descending the stairway that the floor has been reached before it has actually been reached, and thus causes such person to make a false step and fall." The petition further alleged that prior to her injury various people had fallen down the stairway, by reason of the above-quoted defects, in the presence of the defendant; that the defendant had ample opportunity to remedy such defects before her injury, but failed to do so, and failed to warn her of the defects or of the danger of descending the stairway. And this court, in reversing the judgment sustaining a general demurrer to the petition, said: "It will be entirely a question . . whether or not the steps on which the injury occurred, and which are alleged to be defective, presented the optical illusion to a person descending the same (the plaintiff in this case) that the bottom step had been reached before it was actually reached, and that a person descending such steps might, while in the exercise of ordinary care, believe that the last step had been reached before it was actually reached, thus causing such person to make a false step and fall." The facts pleaded in the instant petition are materially different from those in the Fuller case, supra, and the facts and allegations in the present petition present no question of an optical illusion to the plaintiff. The allegations, that "said parking lot has tall buildings all around it, cutting off sunlight except during the middle of the day, and said gully is at a point dividing a new surface area of said lot from an older or patched portion, and extends along and just west of the apron to said wash-rack area, and has been partly filled in with soil of a color blending with colors of said lot formed from motor oil, concrete, dirt, dust, water, rubber, clay, and such substancesas are common to the average parking lot (italics mine), when considered with the other facts and allegations set forth in the petition, fail to set out a cause of action. The petitioner shows that her injury occurred in the daytime, and that the defect in the parking lot was not a latent one, but was a patent one, and furthermore that it was not a small defect, discoverable only by a close inspection thereof, but was a gully 10 feet long, 18 inches wide, and 6 inches deep, and that when she was waiting for her car to be brought to her, she was standing within 3 feet of the gully. Furthermore, the petition, construed most strongly against the plaintiff, shows that the gully was not covered over or hidden by anything, but was in plain view of any person who merely looked at it, that there was no obstruction between her and the gully to prevent her from seeing it while she was waiting for her car, that her eyesight was normal, and that she was not afflicted with any other infirmity, that the defect in the parking lot was an obvious one, and that in the exercise of ordinary care she could have discovered it by merely looking at the ground 3 feet away from her, and thus could have prevented the infliction of the injury sued for. The allegation in the petition that the defendant's negligence was the proximate cause of such injury was a mere conclusion of the pleader unsupported by the facts set forth in the petition.

The sustaining of the general demurrer to the petition was not error.