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Lawskills.com Georgia Caselaw
CALLAWAY v. ATLANTIC & PACIFIC TEA COMPANY.
42724.
Action for damages. Butts Superior Court. Before Judge Sosebee.
QUILLIAN, Judge.
1. The first three enumerations of error which were equivalent to the general grounds of a motion for new trial are without merit.
2. The trial judge erred in withdrawing three allegations of negligence from the jury's consideration.
3. The appellant was not denied an opportunity to state objections to a recharge given the jury.
4. Objections to the trial judge's charge should be made before the jury returns its verdict.
This was a suit for personal injuries brought as a result of the plaintiff, appellant here, falling in a store owned by the defendant. The petition alleged in part that: the plaintiff was an invitee; a meat counter was located in the rear of the defendant's store; the defendant had placed a table approximately three or four feet wide and five feet long in the middle of the aisle in front of the meat counter; there was a space approximately three or four feet wide between the table and the meat counter for customers to walk; the table had parcels of meat stacked on it approximately two or three feet high; the area of the meat counter and aisle was dimly lighted and the floor area in the aisle was shadowed and darkened by the table and parcels thereon; the plaintiff requested one of defendant's employees to assist her in the selection of some meat; the employee motioned for her to walk between the counter and table; as she was walking through the area she slipped and fell on a piece of banana; the piece of banana had been on the floor for at least 30 minutes to an hour; the piece of banana had turned to a dark brown or black color; as a result of its color and the darkened and shadowed area of the aisle the piece of banana was not apparent to the plaintiff; the defendant either knew or should have known that the piece of banana was on the floor.
The defendant was alleged to be negligent: "1. In placing said table in front of said meat counter at said time and place. 2. In placing and stacking bundles of meat on said table at said time and place. 3. In failing to adequately light the floor area between said table and said meat counter at said time and place. 4. In failing to ascertain that petitioner could safely walk over said area at said time and place before indicating to the plaintiff for her to walk through said area. 5. In inviting the plaintiff to walk over said area while said substance was on the floor as aforesaid. 6. In failing to clean said floor area before inviting your petitioner to walk across said floor. 7. In failing to warn your petitioner. 8. In failing to maintain said floor area in a safe condition. 9. In failing to move said table to a safe place in the store. 10. In blocking said aisle with said table."
The defendant filed special demurrers to each of the allegations of negligence quoted above, which were overruled.
The case came on for trial and the jury returned a verdict for the defendant. The plaintiff filed a motion for new trial which was overruled and appeal was taken to this court.
1. The first three enumerations of error were equivalent to the general grounds of a motion for new trial. Upon the trial of the case the plaintiff testified in substance to the facts alleged in her petition. The defendant's store manager testified in part that: with the lights that were overhead in the store on the day in question there would be no shadow on the floor caused by the table; there was more than enough room to run one of the store "buggies through" between the meat counter and the table; that approximately 30 minutes prior to the time the plaintiff fell he had swept the entire area between the meat counter and the table, including the aisle. Another employee of the defendant testified that he observed a child being pushed in one of the buggies eating a banana in that area approximately five minutes before the plaintiff fell.
The above evidence, together with other testimony, was sufficient to present a question for the jury whether the defendant was negligent and whether the plaintiff was in the exercise of ordinary care for her own safety. Enumerations of error 1 through 3 are without merit.
2. Enumerations of error numbers 1A, 10A and 12B insist the trial judge erred in withdrawing, over appellant's objections, four allegations of negligence. The allegations withdrawn were Subparagraphs 1, 2, 9 and 10 of Paragraph 13 of the petition which read: "1. In placing said table in front of said meat counter at said time and place. 2. In placing and stacking bundles of meat on said table at said time and place . . . 9. In failing to move said table to a safe place in the store. 10. In blocking said aisle with said table." The appellee filed special demurrers to each of these allegations. The demurrers were overruled and no exception was taken.
While the allegations in Subparagraph 10 also became the law of the case, the evidence disclosed that the table did not block the aisle. The record reveals, as stated in Division 1 of this opinion, that while the table was located in the aisle it did not block the passageway. Therefore, the allegation that the defendant was negligent "in blocking said aisle with said table" was not supported by the evidence and no error was committed in withdrawing it from the jury's consideration.
3. Enumerations numbers 4-A and 9-A contend the court erred in that it failed to give the appellant an opportunity to state objections to a recharge given the jury. In regard to this matter an order which was made a part of the record reads in part: "Thereafter the court recalled the jury and gave the additional charge which is in the record. The jury retired. The court did not recall the attorneys for each side and inquire if there were any exceptions to the charge of the court, but all attorneys participating in the trial were present, and this being the last case for the term, there was nothing to prevent the attorneys from either side from offering any exception to the court's charge. The court along with the attorneys and parties waited in the courtroom for the jury's verdict."
The appellant having shown no reason why counsel were prevented from making objections to the recharge these enumerations of error are without merit.
4. The remaining enumerations of error contend the charge was erroneous for several reasons. These objections to the court's instructions were not made before the jury returned its verdict as required by Code Ann. 70-207 (a) (Section 17 (a) Appellate Practice Act of 1965; Ga. L. 1965, pp. 18, 31, as amended Ga. L. 1966, pp. 493, 498), Nathan v. Duncan, 113 Ga. App. 630, 638 (149 SE2d 383), and are not considered.
5. The remaining enumerations of error are without merit.
Martin, Snow, Grant & Napier, T. Baldwin Martin, for appellee.
Alfred D. Fears, Clifford Seay, Harvey J. Kennedy, for appellant.
ARGUED APRIL 5, 1967 -- DECIDED MAY 2, 1967 -- REHEARING DENIED MAY 23, 1967 -- CERT. APPLIED FOR.
Friday May 22 19:10 EDT


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