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BELK-MATTHEWS COMPANY OF MACON v. THOMPSON.
36252.
Tort; sidewalk defect created by abutting owner. Before Judge Baldwin. Macon City Court. March 28, 1956.
CARLISLE, J.
1. An owner or occupant of abutting premises who has a servitude in the sidewalk for his private benefit, the enjoyment of which involved the disturbance of the surface of the walk or otherwise affects its safety, must exercise due care to maintain in safe condition the portion affected by such servitude and will be liable for injuries proximately resulting from default in this respect.
2. In an action for damages for the alleged negligence of the defendant in creating and maintaining for its own private benefit a defect in the sidewalk, which allegedly occasioned the plaintiff's injuries, allegations of similar occurrences, given to illustrate the physical facts and that the conditions are the same or similar are relevant for that purpose.
Mrs. Ruth M. Thompson brought an action, seeking to recover $35,000 in damages, against Belk-Matthews Company of Macon. The material allegations of her petition, as finally amended, are substantially as follows: On November 7, 1953, the defendant occupied a building on the easterly side of Third Street known as 464-466 Third Street in the City of Macon, which was used as a retail store. There is a public sidewalk adjacent to this building approximately 20 feet in width running east and west between the building and Third Street and approximately 50 feet in length, running generally north and south in front of the building. On November 7, 1953, the sidewalk, except in front of the building occupied by the defendant, was made of concrete. The sidewalk in front of the building occupied by the defendant was constructed by the defendant of terrazzo. The sidewalk in front of the building occupied by the defendant was higher than the sidewalk in front of other stores adjacent to, and north and south of the defendant's building. Prior to November 7, 1953, the defendant removed the concrete sidewalk in front of its building and replaced it with terrazzo with words made into the terrazzo advertising Belk's. The terrazzo extended from the front of the store to the curb on Third Street, and from the northerly corner of the store to the southerly corner of the store. The defendant also built the sidewalk in front of its store at a higher elevation than the sidewalk in front of adjacent stores so that the sidewalk in front of the defendant's store slopes downward several inches from the front of its building westward for about 20 feet to the curb on the east side of Third Street. The sidewalk also slopes downward several inches in a southerly and northerly direction from a point about 9 feet from the southern and northern boundaries respectively. Although the terrain of the sidewalk, street, and store at that point was almost level naturally, the defendant reconstructed the sidewalk so that it was artificially raised and sloped and the sidewalk at that point has a greater grade, or slope, than is in common use in the downtown business district of the city. The terrazzo placed upon the sidewalk by the defendant is made of small chips of marble set irregularly in cement and polished. Terrazzo is not a material in common use for sidewalks in the City of Macon. The terrazzo placed upon the public sidewalk by the defendant was in squares several feet in diameter and was vari-colored, but most of the small chips of marble were light brown or pale orange in color. The word "BELK'S" was placed several feet from the northern and southern boundaries of the sidewalk in front of the store, and these letters were made of dark green terrazzo. There were steel strips around each letter of the word, and around each square of the terrazzo. The letters in the word "Belk's" were large and so constructed in the terrazzo that the word covered practically the entire width of the sidewalk. The defendant interfered with the public sidewalk in the manner described solely for its private use, benefit, and convenience, particularly as follows:
(a) In removing the concrete sidewalk in front of its store for the purpose of excavating and utilizing the space under the sidewalk as a basement;
(b) In re-laying the sidewalk with excessive elevation and slope in order to enlarge the basement area;
(c) In using the terrazzo for advertising purposes on the public sidewalk; (d) In constructing dark green arrows in the terrazzo sidewalk 30 inches in width and approximately 18 feet in length extending in an arc across the public, sidewalk and pointing to the entrance of its store as an invitation and inducement for customers and prospective customers to enter the store. The defendant continues, for its private use, benefit, and convenience, to use the sidewalk as aforesaid and to use the basement constructed beneath the sidewalk. At all times since replacing and resloping the sidewalk, the defendant's store has been located in the heart of the shopping district of the City of Macon where the sidewalk is walked upon every day, except Sunday, by throngs of people. On Saturday, November 7, 1953, the plaintiff was walking in a northerly direction on Third Street until she came to the defendant's store. She went upon the terrazzo area of the sidewalk and looked at some goods on display in the store window. She then turned and continued her journey northward. On that day the sidewalk in front of the defendant's store was crowded with people, and as the plaintiff was walking in a northerly direction on the sidewalk in front of the store, she stepped upon a segment of an orange and was caused to fall to the sidewalk due to the fact that the terrazzo sloped northerly and southerly and was wet from the orange. The plaintiff did not see the segment of orange until after she had fallen because her vision was obstructed by the crowd of people on the sidewalk and the orange was about the same color as the terrazzo and, therefore, inconspicuous. The plaintiff fell on the terrazzo sidewalk on the letter "E" in the word "Belk's", which is located about 6 feet from the front of the defendant's store and about 6 feet from the northern boundary of the sidewalk in front of the store. The orange was on the light colored terrazzo between the letter "E" and the letter "L" and it skidded about 9 inches across the terrazzo when the plaintiff stepped upon it as the sidewalk slopes westward and northward at that point. Prior to November 7, 1953, the defendant had knowledge that the terrazzo which it had placed upon the public sidewalk in front of its store was slick and dangerous when it became wet. The defendant also knew that the terrazzo sidewalk sloped at a material degree and the defendant, knowing of the construction of the sidewalk and that it was inherently slick and dangerous when a segment of
an orange or other foreign substance was on it, nevertheless failed to warn the plaintiff and the public of these facts, but negligently allowed the slick and dangerous terrazzo to remain on the public sidewalk after it had knowledge of its slick and dangerous condition when it became wet from rain or other foreign substance. Prior to November 7, 1953, the defendant had actual knowledge that as the result of its recomposition and resloping of the sidewalk with terrazzo the sidewalk was slick and dangerous. It was aware that other persons, not knowing it to be slick and dangerous, had slipped and fallen while attempting to walk upon it under substantially the same circumstances as described here. Prior to November 7, 1953, the defendant had knowledge that the terrazzo was also slick and dangerous due to its composition and slope even without any moisture or foreign substance upon it, but, nevertheless, failed to warn the plaintiff or the public of these facts and negligently allowed the slick and dangerous terrazzo to remain on the public sidewalk. At the time of the reconstruction of the sidewalk by the defendant with terrazzo, there was in existence and effect a municipal ordinance of the City of Macon providing as follows: "27-801. Abutting owners must maintain sidewalks. It shall be the duty of persons owning real estate which fronts or abuts upon any street in the city, upon proper notice served upon them by the chief of police, to lay and maintain in front of or adjacent to such realty, a substantial sidewalk of such character and material as is in this code required. Such sidewalk shall be laid according to the grade furnished by the city engineer and in compliance with the directions of the city engineer, and be subject to his approval." The defendant in replacing the sidewalk with terrazzo failed to lay it according to the grade furnished by the city engineer, or in compliance with his directions. It also failed to obtain the approval of a city engineer. At the time the terrazzo was laid by the defendant, there was in existence and effect a municipal ordinance of the City of Macon providing as follows: "27-803. Materials for sidewalks. The material allowed in repairing, re-laying, or laying sidewalks shall be cement or tile in all cases, unless the mayor and council, by resolution, expressly permits the employment of some other material." The defendant, nevertheless, repaired and re-laid the sidewalk with terrazzo instead of cement or tile without a resolution by the mayor and council expressly permitting the use of terrazzo. At the time of the defendant's reconstruction of the sidewalk with terrazzo, there was in existence and effect a municipal ordinance of the City of Macon providing as follows: "27-806. Work done under the direction of city engineer. Whenever any sidewalk is condemned and ordered to be repaired or re-laid or whenever any sidewalk is ordered to be laid, or whenever any sidewalk is repaired, re-laid, or laid voluntarily by any property owner, the work of repairing, re-laying or laying of any such sidewalk shall be prosecuted under the supervision of the city engineer, and in accordance with specifications to be prescribed by him, regardless of by whom such work is done; and the material allowed therein shall be approved by the city engineer." In re-laying the sidewalk with the terrazzo, the defendant failed to do the work under the supervision of the city engineer, failed to do the work in accordance with specifications prescribed by the city engineer, and failed to have the material approved by the city engineer. At the time and place in question, the plaintiff was in the exercise of ordinary care and did not know that the terrazzo sloped west and north to such a material degree. She did not know that the segment of orange was on the sidewalk or that the terrazzo was slick and dangerous when wet. As the result of the defendant's negligence, the plaintiff sustained enumerated personal injuries, from which she suffered, now suffers and will continue to suffer for the remainder of her life. At the time of her injury, the plaintiff was 39 years of age. Prior to her injuries, the plaintiff performed all of the household duties commonly performed by a housewife, but since that time has been unable to perform those duties. Her loss of capacity to work causes her great mental pain and suffering. The defendant's negligence was the proximate cause of the plaintiff's injuries and it was negligent in the following particulars: (a) in removing the concrete sidewalks; (b) in laying the terrazzo so that it sloped, as alleged, without obtaining the direction and approval of the city engineer, which was in violation of 27-801 of the City Code of Macon; (c) in placing the terrazzo upon the public sidewalk without a resolution of the mayor and council authorizing its use, which was in violation of 27-803 of the City Code
of Macon; (d) in laying the terrazzo without obtaining approval of the material by the city engineer and performing the work without specifications prescribed by the city engineer and without his supervision, which was in violation of 27-806 of the City Code of Macon; (e) in allowing the sloping terrazzo to remain on the public sidewalk after it had knowledge that it was slick and dangerous; (f) in allowing the terrazzo to remain on the public sidewalk after it had knowledge that it was slick and dangerous when wet and/or with foreign matter upon it; (g) in failing to warn the plaintiff of the slope in the sidewalk; (h) in failing to warn the plaintiff that the terrazzo was slick and dangerous when wet and/or with foreign matter upon it; (i) in constructing and erecting upon the sidewalk a defective and slippery walking area of terrazzo composition; (j) in constructing and erecting upon the sidewalk a defective and slippery walking area due to its excessive artificial slope; (k) in constructing and erecting upon the sidewalk a defective and slippery walking area due to the combination of the terrazzo composition and its artificial slope; (l) in failing to warn the plaintiff that the sloping terrazzo sidewalk was slick and dangerous even without any moisture or foreign substance upon it.
The defendant's general and special demurrers to the petition as amended were overruled and it assigns error upon that judgment.
1. Questions as to diligence and negligence including contributory negligence and proximate cause are peculiarly for the determination of a jury and the court will not solve them on demurrer, except in plain and indisputable cases. International Cotton Mills v. Carroll, 22 Ga. App. 26 (95 S. E. 472); Hodges v. Atlanta Gas Light Co., 75 Ga. App. 105 (42 S. E. 2d 244).
"There may be more than one proximate cause of an injury. Shermer v. Crowe, 53 Ga. App. 418 (3) (186 S. E. 224). It is no defense to an action for an injury resulting from negligence that the negligence of a third person contributed to cause the injury, if the negligence of the defendant was an efficient cause without which the injury would not have occurred. Rollestone v. Cassirer, 3 Ga. App. 161, 173 (59 S. E. 442). 'In case two or more near and preponderating negligent causes are found to have become effectuated in the same injurious result, the question as to which of the two or more negligent actors is to be held responsible is determined usually in this wise: If the two negligent acts are so related that the first would not probably have resulted in injury if the other had not occurred, and the latter amounts to such a preponderating cause that it probably would have produced the injury even if the first negligence had not occurred, or if the author of the latter negligence, with the intermediate effects of the former negligence consciously before him, is guilty of a new negligent act which preponderates in producing the injurious effect, we say that the first negligent cause is not the proximate cause, that the intervention of the latter negligence breaks the chain of causal connection so far as juridic purposes are concerned. But if two negligent causes stand so related that neither would have produced a handful result but for the other, and both of them consist of such acts as, according to the general course of human probabilities, produce some such injurious effect as that which did in fact ensue, i.e., if both the negligent causes are material factors in producing the injury, and are closely connected with it, and one has not so intervened as to make it the preponderating cause, we say that the two negligent actors are guilty of concurring negligence.' Atlantic Coast Line Ins. Co. v. Daniels, 8 Ga. App. 775, 780 (70 S. E. 203). 'The proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently in causing the injury. [Citations.] While the causal connection between an act of negligence and a resulting injury is not broken by an intervening act which immediately causes the injury where this act can, in the exercise of due care, be foreseen by the original wrongdoer, the negligence in the intervening act may concur with the negligence of the original wrongdoer in causing the injury, and the perpetrators of both acts may be joint tortfeasors.' Allyn & Bacon Book Publishers v. Nicholson, 58 Ga. App. 729 (199 S. E. 771)." Callahan v. Cofield, 61 Ga. App. 780, 782 (7 S. E. 2d 592).
"A municipal corporation may by reasonable ordinance that the right of an abutting owner [or occupant] in obstructing the sidewalk in the exercise of his legitimate business. 'As against a member of the public, injured as a proximate result thereof, a violation of such an ordinance is per se negligent.' William Bensel Construction Company v. Homer, 2 Ga. App. 369 (58 S. E. 489); Brooks v. Atlanta, 1 Ga. App. 678 (57 S. E. 1081); City of Thomasville v. Campbell, 38 Ga. App. 248 (143 S. E. 922)." Mason v. Frankel, 49 Ga. App. 145 (1) (174 S. E. 546).
"In accordance with the general principles governing the duties and liabilities of private persons and corporations generally with respect to the safety of highways . . . an owner or occupant of abutting premises who has a servitude in the sidewalk or other portion of a public way, for his private benefit, the enjoyment of which involves the disturbance of the surface of the walk or way or otherwise affects its safety, must exercise due care to maintain in safe condition the portion affected by such servitude and will be liable for injuries proximately resulting from his default in this respect." 25 Am. Jur. 659, 365. This principle has been cited with approval by this court in Robertson v. Liggett Drug Company, Inc., 81 Ga. App. 850, 854 (60 S. E. 2d 268).
"While the owner [or occupant] of abutting property is not liable for defects in the street or sidewalk merely by reason of his ownership of the property, nevertheless, where the owner [or occupant] of abutting property causes or contributes to the erection of an obstruction or a defect in the street or sidewalk, he will be liable to one injured thereby, not because of his ownership [or occupancy] of the property, but because of his negligent acts or omissions in creating the defect or hazard. Byne v. Mayor &c. of Americus, 6 Ga. App. 48 (2) (64 S. E. 285); Scearce v. Mayor &c. of Gainesville, 33 Ga. App. 411 (2) (126 S. E. 883); Ellis v. Southern-Grocery Stores, 46 Ga. App. 254 (2) (167 S. E. 324). In such cases all that is essential to state a cause of action is the allegation of facts showing that such defect or hazard in the street or sidewalk was created by some act or omission of the defendant [owner or occupant], knowledge by the defendant of the existence of such defect or hazard, and injury to the plaintiff resulting from such defect or hazard." Mason v. Crowe, 88 Ga. App. 191, 195 (76 S. E. 2d 432). See also in this connection Rhodes v. Perlis, 83 Ga. App. 312 (63 S. E. 2d 457).
Under an application of the foregoing principles of law to the facts of the present case, the plaintiff stated a cause of action against the defendant and the trial court did not err in overruling the general demurrer to her petition. She alleges that the defendant reconstructed the sidewalk abutting its store for its own private use and benefit; that in doing so, it used a material which is inherently slick and dangerous to persons walking upon it and which is particularly dangerously slick when wet or covered with foreign substances; that in its reconstruction the defendant raised the sidewalk to a higher level and changed its grade to one greater than is in common use in the business district of the city. She charges that these actions of the defendant were in contravention of applicable city ordinances. As against demurrer these allegations of fact must be taken as true, and an examination of the ordinance in question showed this to be the case. She charges the defendant with actual knowledge of the defect and hazard which its reconstruction of the sidewalk created and with negligence in continuing to maintain the defect and hazard in the sidewalk after such knowledge, and with negligence in failing to warn the public of its presence. While it is alleged that the plaintiff, while walking on the sidewalk reconstructed by the defendant, stepped upon a segment of an orange and was caused to fall, she alleges that her fall was "due to the fact that the terrazzo sloped northerly and southerly and was wet from the orange."
2. None of the special demurrers, not elsewhere dealt with, is worthy of mention save that objecting to the allegation in the petition that the defendant "was aware that other persons, not knowing it [the terrazzo sidewalk] to be slick and dangerous, had slipped and fallen while attempting to walk upon it under substantially the same circumstances as described here," upon the grounds that this allegation seeks to introduce immaterial and irrelevant matter hurtful to the defendant and that it is not alleged that if other persons did fall, they fell under exactly the same circumstances and at the same location as the plaintiff. The allegation is that there had been other such occurrences " under substantially the same circumstances ." The question of the relevancy of such an allegation has been decided adversely to the defendant in L. & N. R. Co. v. Bean, 49 Ga. App. 4, 5 (1a) (174 S. E. 209) and City of Brunswick v. Glogauer, 158 Ga. 792, 817 (124 S. E. 787).
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
John D. Mattox, Benning M. Grice, contra.
R. Lanier Anderson, Jr., Anderson, Anderson, Walker & Reichert, for plaintiff in error.
DECIDED SEPTEMBER 20, 1956.
Saturday May 23 02:15 EDT


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