1. In support of its first contention, that the petition fails to allege actionable negligence, the defendant cites Jones
v. West End Theatre Co.,
Where the action of an invitee is based on an alleged defect which would be actionable if created by the defendant and a constructive or implied knowledge only is alleged, the question presented, on demurrer, is whether the facts alleged, if proved, would authorize a jury to determine that the defendant was negligent in not discovering such defect. If the allegations show that the defendant had the opportunity to discover the defect a jury question is presented. See
Henderson v. Nolting First Mortgage Cory.,
*303 The petition as finally amendеd alleged, with reference to the defendant’s opportunity to have discovered such defective condition, that: “The right portion of the lower steps from the aforesaid landing to the basement or bottom floor was covered with some white slippery substаnce, a part of which the plaintiff had slipped in when she had stepped on the aforesaid step and slipped. That this substance had been tracked throughout the remaining portion and parts of the basement floor and some of the white slippery substance had been tracked by someone on the left bottom portion of the left side of the stairs for approximately four or fivе steps from the basement towards the ground floor but had not been brought up to or beyond the aforesaid landing. The left side of which was just dеscribed means to the left side of the aforesaid stairway from a person descending the steps or would have been to the right side of a person ascending the aforesaid steps, but this had worn off before the tracks reached the landing on the upper рortion of the the aforesaid steps. Plaintiff shows that defendant could have by the exercise of ordinary care known of this slipрery substance because approximately six feet directly in front of the bottom portion of this stairway and within easy sight of the stairwаy was a servant, agent, or employee of the defendant at the time plaintiff fell. The plaintiff further shows that to the left of the afоresaid stairway and in full view of this stairway, another servant, agent, or employee who was working at a counter could have easily detected this aforesaid white substance in which the plaintiff slipped which had been tracked throughout the remaining portion of the store. Plaintiff shows that there was also a floorwalker, or manager, that from most any part could have seen the condition of the bottom portion of the staircase as aforesaid and also could have easily detected that peoplе also tracked such substances throughout the store and this white substance appeared in several places about the dеfendant’s store. Plaintiff shows that the defendant knew or by the use of ordinary care should have known of the white slippery substance that сause the aforesaid dangerous condition because its aforesaid servant, agent or employee had for a time рrior to the time that the plaintiff slipped and fell been on duty in the *304 proximity of the stairway upon which the plaintiff fell, and the aforesаid white substance had been tracked out into- the basement portion of the store by persons who had descended the same stаirway prior to the plaintiff’s fall. Plaintiff alleges that the said matter had remained on the aforesaid landing for such a length of time to givе the defendant corporation reasonable notice of the dangerous condition of its stairway, prior to plaintiff’s fall, because Christmas shopping patrons of the defendant corporation had tracked the substance from the steps upon which the plaintiff fell throughout the remaining portion of the basement floor and some of it had actually been tracked back up and onto the bottom steps on the left-hand side of the aforesaid stairway upon which the plaintiff fell.”
Under these allegations it cannot be said as a matter of law that the defendant did not have an opportuntiy to. discover and either warn the plaintiff, or cоrrect the alleged defect.
2. The sole remaining contention of the defendant is that under the allegations of the petition the plaintiff was not exercising ordinary care for her own safety. This contention is based on the ruling of this court in
White v. City of Manchester,
In the present case the plаintiff alleged that the stairway consisted of two flights of stairs constructed at a right angle with a landing where the two flights of steps met, that going down thе stairs a marble wall was located on the right which prohibited the plaintiff from seeing the second flight of stairs until she turned the corner, that at the place (on the right-hand side of the stairs), where the plaintiff was descending the stairs the landing was actually just one more step in thе flights of stairs, that as she turned the corner, and stepped on the first step of the. second flight of stairs her foot struck a white slippery substаnce that caused her to fall the remainder of the way down the stairs.
*305
Under these allegations it cannot be said that the plaintiff was, as a matter of law, failing to exercise ordinary care for her own safety. See
American Legion, Dept. of Georgia v. Simonton,
The plaintiff’s petition alleged a cаuse of action against the defendant for the negligence of the defendant in connection with the foreign substance alleged to have been on the steps, and the trial court did not err in overruling the defendant’s general demurrers to the petition as amended.
Judgment affirmed.