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Tort; customer injured in store. Before Judge Moore. Fulton Superior Court. February 11, 1957.
The petitions stated good causes of action against the general demurrers; therefore, the court erred in sustaining the general demurrers and in dismissing the actions.
In Case No. 36669, Mrs. Opal Stanfield sued Forrest Five to Five Dollar Stores, doing business as Forrest Five and Ten Cent Store, for damages allegedly caused by the defendant's negligence. The plaintiff in substance alleged that on March 26, 1956, at about 1:30 p. m. she entered the Forrest Five to Five Dollar Store, a retail store owned and operated by the defendant, for the purpose of making a retail purchase; that she entered said store, made a purchase and inquired of one of defendant's employees where she might find some Easter cards; that said employee and servant of the defendant directed her to a counter which had wares, merchandise, including Easter cards for sale; that she was directed down an aisle toward said counter and that the aisle was provided in said store for members of the public to use in passing between merchandise counters located in the store upon which wares for sale to the public are kept and displayed; that as she reached a point near the Easter card counter, she tripped on a box approximately six inches in height and protruding out into the aisle approximately five inches; that said box was at the time being used by the defendant to support a temporary counter in said store and that her attention was diverted by the wares and merchandise adjacent to said aisle so that she did not observe said obstruction until she had tripped on it; that the obstruction on which she tripped was at floor level; that the floor of said aisle was dark and poorly lighted and the obstruction itself being low on the floor and small in size could not be observed by persons exercising due care; that she at all times while in said defendant's retail store was exercising due care for her own safety; that defendant knew or should have known in the exercise of ordinary care that petitioner and other members of the public using said aisle would expect it to be free from obstruction and that the attention of such persons would be attracted to the merchandise displayed on the counters adjacent to said aisle so that members of the public using said aisle which was difficult to observe and avoid; that at said time she was an invitee in defendant's store.
The plaintiff specifies the following acts of negligence: (a) In permitting the aisle provided for the passage of its customers to be obstructed and made unsafe by placing at floor level a low box which formed a dangerous and unsafe obstruction therein and was difficult to observe and avoid; (b) In failing to warn her of the dangerous condition existing in said aisle; (c) In permitting said aisle to become and remain so obstructed, knowing that the attention of the customers using said aisle would be distracted by the wares displayed adjacent thereto, and that said obstruction might not be observed by a customer exercising ordinary care for her own safety; (d) In permitting her to use this aisle while so obstructed so as to place herself in danger of injuries such as did result to her from tripping on said object; (e) In directing her to use said aisle while such obstruction was in said aisle.
In Case No. 36670, Harry Stanfield sued the defendant for damages allegedly caused by the defendant's negligence and arising out of his wife's fall.
In each case the defendant's general demurrer to the petition was sustained and the action was dismissed, and the plaintiff in each case excepts.
J. This is not a clear and indisputable case that can be resolved as a matter of law. The object which caused the plaintiff to fall was not so bulky or so generally expected to be in the place where she was injured. The plaintiff alleged that the object was concealed because of poor lighting and that her attention was partially diverted by the wares displayed on the counter. The law is well settled that under such circumstances, the case is one for a jury's determination. Harris v. Mayes, 94 Ga. App. 505 (2) (95 S. E. 2d 26); Miller v. Bart, 90 Ga. App. 755 (84 S. E. 2d 127); Glover v. City Council of Augusta, 83 Ga. App. 314 (63 S. E. 2d 422); Mason v. Frankel, 49 Ga. App. 145 (2) (174 S. E. 546); King Hardware Co. v. Teplis, 91 Ga. App. 13 (84 S. E. 2d 686); Atlanta Enterprises, Inc. v. Douglass, 93 Ga. App. 237 (91 S. E. 2d 296).
The court erred in sustaining the general demurrers and in dismissing the actions.
Judgments reversed. Quillian and Nichols, JJ., concur.
Calhoun & Calhoun, Walter W. Calhoun, contra.
A. W. Lyle, J. Walter LeCraw, for plaintiffs in error.
Saturday May 23 02:05 EDT

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