Boyd v. Gardner, 9 S.E.2d 202

Boyd v. Gardner

9 S.E.2d 202 | Ga. Ct. App. | 1940

Lead Opinion

The court did not err in overruling the general and special demurrers to the petition as amended.

DECIDED MAY 13, 1940. REHEARING DENIED JUNE 10, 1940. Mrs. Ellen M. Gardner sued W. R. Boyd for damages from alleged personal injuries. Her petition as amended alleged in substance *663 as follows: Boyd was the agent and representative of W. M. Weiss, the lessee of a building in Savannah, in which Weiss through Boyd operated a photographic studio. In the place of business of defendants there is a lobby in the front of the store, and immediately back of the lobby is a passageway, to the left of which are two dressing-rooms, and at the end of which is located the photographic studio. The floor of the lobby at its junction with the passageway is approximately 7 1/2 inches lower than the floor of the passageway, and this condition is well known to the defendant, and the lobby, passageway, and photographic studio form a part of the premises rented by Weiss. On the morning of the alleged injury the petitioner and her daughter went to the place of business of the defendant, for the purpose of having some pictures made, and after going through the lobby went into the dressing-room for the purpose of preparing for the taking of the pictures. The passageway is in the middle of the building, is not provided with an electric or other artificial light, and has only such lights as come from the lobby to the north and the studio to the south, which lighting is wholly inadequate for the safety of one passing from the lobby into the passageway and into the studio, and vice versa. At the time of the injury there were four frosted 150-watt electric-light globes in the ceiling of the lobby at equal distances from north to south, the lobby being approximately fourteen feet wide and thirty-six feet long, but only the two northern globes were burning at the time of the injury. Even had all the bulbs been burning, the light would have been insufficient and inadequate for the safety of one passing from the lobby into the passageway. There was no banister or other barricade to prevent petitioner from falling at the step-down from the passageway to the lobby floor. Both floors were covered by a carpet of the same color which disguised the step-down. At the step-down the passageway is three and a half feet wide. Petitioner was returning from the dressing-room toward the lobby; and being unable to see the position of the step-down at the end of the passageway, and thinking that the floor continued on a level, there being no light to apprise her of the danger, she was thrown and fell violently to the lobby floor, and in so falling suffered an aggravated fracture of the left femur above the knee. At that time she was using the same passageway in returning to the lobby that she had used in passing from the lobby to the dressing-room. *664 The lobby in the front of said store facing Broughton Street is fourteen feet wide and thirty-six feet deep from north to south. As she turned from the dressing-room into the passageway, facing north toward the lobby, she faced directly toward the plate-glass door ten feet high and four feet wide, and two windows approximately three feet by three feet, and the glare from these openings tended further to hinder and impair her vision. Because of her advanced age she will be a hopeless cripple for the rest of her life; she has suffered described pain and suffering, and incurred specified expenses on account of the injury. By reason of the dangerous and defective condition of the premises at least four other persons were caused to fall at the step-down while passing from the lobby to the passageway and vice versa, all of which was known to the defendant, and he was charged with actual knowledge of the dangerous and defective condition, but despite such actual knowledge no change was made in the condition of the premises, and the defendant continued to use them in such condition for a period of at least two months before the injury. The defendant was negligent, (a) in operating a studio business in the store which was not adequately lighted; (b) in not having a light placed in the passageway to enable one to pass from the passage to the lobby without falling; (c) in not having a banister or other means in the absence of the necessary light to keep petitioner from falling; (d) in not personally conducting her, on account of her age (seventy-five years) and infirmity from the passageway to the lobby, and thereby preventing her from falling.

The defendant filed general and special demurrers to the petition as amended, and exception was taken to the order overruling them. As against general demurrer the petition set forth a cause of action for maintaining premises in such a way that a dangerous and treacherous situation existed as to a person going from the studio room down the passageway to the lobby. (It would not be negligence to fail to conduct the petitioner, in the absence of knowledge of her infirmities.) The serious question in the case is whether the petition showed on its face that the plaintiff was guilty of such negligence as would bar her recovery; specifically, having ascended the *665 step in going into the passageway, whether she could have been charged with knowledge of the elevation, and be presumed to be capable of remembering the step-down on her return from the studio, when, under the allegations, a jury would be authorized to find that the situation presented to one going from the passageway to the lobby an appearance different from what it was to one going from the lobby to the passageway. This almost identical question was decided by this court in Tybee AmusementCo. v. Odum, 51 Ga. App. 1 (179 S.E. 415), in which it was held that an invitee, going upon an elevated floor when the lights were bright, was not charged with the duty of recollecting the step-down when the lights were dim. In view of that ruling, and of the plaintiff's poor eyesight, it can not be said as a matter of law that the plaintiff's own negligence, if any, would bar a recovery. She might have been less negligent than the defendant, and still be entitled to recover if she could not have avoided the injury by the exercise of ordinary care. SeeMandeville Mills v. Dale, 2 Ga. App. 607 (58 S.E. 1060). This case is distinguishable from Executive Committee of theBaptist Convention v. Wardlaw, 180 Ga. 148 (178 S.E. 55), reversing Wardlaw v. Executive Committee of the BaptistConvention, 47 Ga. App. 595 (170 S.E. 830). In that case it was not alleged why the injured person could not have seen the step-down by the exercise of ordinary care. The court did not err in overruling the demurrers.

Judgment affirmed. Stephens, P. J., concurs.

Dissenting Opinion

I think the court erred in overruling the general demurrer. The plaintiff had just ascended and passed over the step-up in the floor in going from the lobby of the storeroom into the passageway leading to the dressing-room and photographic studio, and therefore she was charged with knowledge of the elevation of the floor at the point where it is alleged she fell in returning from the studio over the same passageway to the lobby of the storeroom. It is alleged that the floor of the passageway was seven and a half inches higher than the floor of the lobby of the storeroom. Only a few minutes before she was injured the plaintiff safely passed over this step-up as she went to the dressing-room, and was returning over the same elevation, step-down, when it is alleged she fell and was injured. The petition when construed on demurrer shows on its face that she was not entitled to recover. *666