Wе are called upon in this case to consider the possibility of error in the granting of a motion for summary judgment where the only documents appearing in the record are the petition, thе answer, and certain portions of the deposition of the plaintiff, Mrs. Susan L. Sanders. The deposition was taken by the opposite parties on cross-examination, and those fragments оf it offered in evidence at the summary judgment hearing were tendered by the movants in support of thе motion. No evidence of any kind was offered by the plaintiff in opposition to the motion.
It is urged in the defendants’ brief that the case of
Brand v. Pope,
The Brand case was brought to recover for injuries sustained when the plaintiff walked through a glass door. The petition there and the one here are similar in most of their relevant aspects. In еach the glass was alleged to be neither visible nor obvious, and where located, constituted a dangerous and unsafe condition. One of the holdings in Brand was that a failure to negate by allegаtions the presence of metal or other hardware in the construction of the door оr of a track for the door to move upon as it was being opened or closed, was sufficient to put the plaintiff on notice of the presence of the door. In this case the рetition seeks to evade this ruling by alleging that the fixed glass panel was supported by two mullions or posts but that these were hidden by hanging draperies or curtains. This *139 attempted evasion can not be effective as it is certainly a matter of common knowledge that hanging draperies or сurtains generally are used to embellish glass windows or partitions. If the presence of hardwarе in a glass door is sufficient to put one on notice as to the existence of a glass door (as per Brand), then all the more, we would think, hanging draperies or curtains would serve to put onе on such notice.
Thus, it is quite apparent that the petition here would be subject to general demurrer under the authority of Brand. But we are not now concerned with a general demurrer. We arc reviewing the grant of a motion for summary judgment and must consider the answer and the evidence as wеll as the petition to determine if there is present in the case a substantial issue of fact.
The evidence here does not authorize the grant, as it does not show knowledge on the pаrt of the plaintiff of either the metal posts framing the fixed glass panel or the hanging draperiеs concealing them. All of the testimony in the record relating to metal fixtures or runways for glass doors involved only those associated with the sliding glass doors which had been removed and which were nоt responsible for the mishap' under suit.
The petition and the answer, when considered together as we must do on motion for summary judgment, clearly presents an issue of fact which is not resolved by the еvidence.
In paragraph 19 (a) of the petition it is specially alleged that the fixed glass рanel was set between two small mullions or posts which were concealed by hanging drapes or curtains. As explained above, this allegation on general demurrer would bring the case in рoint with
Brand.
It follows that if the paragraph had been admitted as being true by the answer, on summary judgment there would be no issue of fact and we could affirm the grant of the motion. Where there is no genuine issuе as to a material fact a summary judgment may be granted upon the pleadings alone.
Dillard v.
Brannan,
However, the answer categorically denies the truthfulness of *140 paragraph 19(a) which is sufficient to create a substantial issue of fact. Unlike the rule on general demurrer, the petition where the defendant moves for a summary judgment is to be construed liberally in favor of the complainant. 6 Moore Fed. Prac. (2d Ed.) 2063-4, § 66.11, and Gunn v. Assn. of Cаsualty & Surety Executives, 16 F.R. 56 c 41, case 1.
The situation here is different from that in
Scales v. Peevy,
On motion for summary judgment where the petition and the аnswer construed together present an issue as to a material fact, and this issue is not conclusively eliminated by uncontradicted testimony offered at the hearing, the issue remains in the case and a judgment granting the motion must be reversed.
Judgment reversed.