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Action for damages. Before Judge Shaw. Fulton Superior Court. September 13, 1955.
Albert Collier Douglass, by next friend, sued Atlanta Enterprises, Inc., for damages allegedly caused by the defendant's negligence. The petition alleged the following facts: On the night of November 10, 1954, at about seven p. m., the plaintiff and his sisters had bought tickets at the Fox Theatre entitling them to see the moving picture show in progress there at that time, and the plaintiff was proceeding along the corridor to the auditorium in order to see the moving picture, when he was injured in the manner herein set out. The Fox Theatre was a moving picture theatre which was being operated by the defendant at said time. That part of the building at 660 Peachtree Street, N. E., in which the Fox Theatre was operated, including the corridor leading westwardly from the entrance at the sidewalk into the auditorium, was in the custody and control of the defendant and was being used and maintained at the time by the defendant. The corridor was designed as a walkway extending from the ticket office at the entrance 60 feet or more to the auditorium where the moving picture was being shown. The corridor had a high ceiling about 20 feet in height and was dimly lighted by shaded lights in the ceiling. On the right side of the corridor was a straight wall, on the side of which, at a point about 20 feet from the entrance, was a merchandise window showing clothing store merchandise, and just west of that in the wall was a showcase advertising moving pictures which were to come, and carrying pictures of scenes from the shows to come, and carrying lettering explaining to some extent what the shows were, and beyond that in the wall was another merchandise show window, and beyond that in the wall was another showcase advertising shows to come. The show windows were about 10 feet wide by 6 feet high and about 2 feet above the floor and were brightly lighted, and the paneled show-cases advertising coming shows were each about 3 feet wide and 4 feet high. The surface of both the merchandise windows and the windows advertising shows were within the walls, the glass covering of the cases and windows being flush with the wall. There was a space of about 5 feet between the show windows and the first movie advertisement window. The bottom of each of the showcases was about 3 feet above the level of the floor of the corridor and the bottom of each window was about 2 feet above the level of the floor. The show cases and the advertisements in the showcases were put there by the defendant for the purpose of attracting attention of its patrons entering the theatre to the movie advertisements, and were in the form of interesting scenes from coming pictures, with reading matter explaining the pictures, the pictures and reading matter being primarily arranged so as to entice and induce people, while on their way into the show, to
look into the showcases. Both the pictures and reading matter could be most easily seen, read and understood by persons at a distance of 2 or 3 feet away from the showcases. The paneled picture showcases were put there for the purpose of causing patrons of the theatre, as they walked along into the theatre 3 or 4 feet from the showcases, to read the advertising lettering and look at the pictures. A low flat platform scale about 21/2 feet long and 18 inches wide and 2 or 3 inches high at said time was on the corridor floor below and about one foot west of the first of said advertising showcases. It extended out from the wall about 3 feet into the corridor. The scale was a weighing scale and had no proper connection whatever with the operation of a moving picture theatre. The lights from the merchandising show windows were brighter than the lights from the ceiling lamps and thus caused a slight shadow to be cast over said scale. On said date at about said hour of 7 p. m., as the plaintiff was walking along said corridor about 2 or 3 feet from the wall, looking at and having his attention partly absorbed in said picture advertisement in the wall and thus partly but not entirely detracted from the floor in front of him as he walked, his foot struck the scale before he saw it and he was thrown violently to said hard-surfaced floor and injured painfully, seriously and permanently as set out. The plaintiff had no knowledge that the scale was there until the instant he came in contact with it, and could not, in the exercise of that degree of care chargeable to a child of the tender age of 6 years, have discovered it. The defendant knew that said scale had been there at that night for several weeks and knowingly permitted it to remain there. The defendant maintained said movie advertisement windows and knowingly permitted said merchandise advertisement windows to be constructed, used and maintained in the positions herein described. The defendant maintained said movie advertisement windows in said wall and permitted said merchandise advertisements in said wall to attract patrons of the theatre and induce them to look as they walked and defendant knew or should have known that the plaintiff and other patrons of the theatre would look at said advertisements as they walked along said corridor walkway where the scale was located. The showcase above the scale and advertisements of moving pictures carrying lettering about movies was particularly attractive and enticing to a young child six years of age, the age of the plaintiff. The plaintiff alleged that the defendant was negligent in the following particulars: In that it knew of the presence of the scale in said location and permitted it to remain there; in knowingly permitting the scale to be in the corridor at the time in the line of travel of patrons walking and at the same time looking at said advertisements; in having the corridor dimly lighted when it knew of the presence of the scale at said place; in not removing the scale from the corridor when it knew and had known of the presence of the scale there for several weeks prior to the time of the plaintiff's injury; in maintaining the movie showcase above the scale to attract the attention of its patrons away from the walkway and the scale as they proceeded along the corridor.
The general demurrer to the petition was overruled and the defendant excepts.
The plaintiff in error concedes that due to the tender age of the plaintiff the question of contributory negligence is not presented. The sole questions for determination are as succinctly stated in plaintiff in error's brief: "Does the petition allege that the scale in its alleged position, etc., was dangerous in that it would probably and 'according to ordinary and usual experience' cause injury to an invitee? Does the petition allege that the defendant should reasonably have apprehended that the scale in its alleged position, etc., was dangerous in that it would probably and 'according to ordinary and usual experience' cause injury to an invitee?" The plaintiff in error contends that the petition does not show such facts.
In order to reverse the trial court's judgment we must find the petition shows that as a matter of law the defendant could not have reasonably anticipated that someone might be injured due to the described conditions. We think from the facts alleged as to the position of the scale in relation to the display windows and cases, the light and shadow conditions and the general nature and use of the particular premises, it is a question for a jury's determination as to whether the defendant was negligent. This is not a clear and indisputable case that can be resolved as a matter of law. For cases concerning the physical and lighting conditions of premises, see: Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (179 S. E. 415); Hanson v. Atlanta Lodge No. 78 B. P. O. Elks, 88 Ga. App. 116 (76 S. E. 2d 77); Pilgreen v. Hanson, 89 Ga. App. 703 (81 S. E. 2d 18).
The court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Quillian and Nichols, JJ., concur.
Arnold & Gambrell, John E. Dougherty, contra.
Powell, Goldstein, Frazer & Murphy, C. B. Rogers, James K. Rankin, for plaintiff in error.
The petition alleged a cause of action for negligence; therefore, the court did not err in overruling the general demurrer. DECIDED JANUARY 25, 1956.
Saturday May 23 02:14 EDT

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