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WICKER v. ROBERTS et al. (two cases).
RAY v. ROBERTS et al. (two cases).
35312.
35313.
35314.
35315.
Action for damages. Before Judge Moore. Fulton Superior Court. May 4, 1954.
NICHOLS, J.
The petitions, alleging that the plaintiff invitee was injured when she tripped upon an interlocking weatherstrip in a doorway through which she was passing to leave premises occupied by one of the defendants and owned by the other, showed circumstances under which the defendants, in the exercise of ordinary care, might have foreseen the danger in such a structure, and did not affirmatively show that the plaintiff failed to exercise ordinary care for her own safety; the court did not err in overruling the demurrers to the petitions.
Faye P. Roberts brought an action to recover damages for personal injuries against Roy Wicker and L. A. Ray; and her husband, Benson Roberts, also brought an action against the same defendants to recover for loss of his wife's services and consortium and for medical expenses in the treatment of her injuries. The cases are here on separate bills of exceptions brought by the defendants in each case, in which they assign error on the judgments overruling their renewed general demurrers to the amended petitions. The allegations of both petitions, in so far as material to a determination of the points raised here, are in substance as follows:
In September, 1953, Wicker was a practicing dentist in Atlanta and occupied a part of a certain building owned by Ray. The plaintiff wife was a patient of Wicker, and on September 3, 1953, went to his office in the building to fill a dental appointment with him. She was injured while leaving his office and the building.
Beneath the front door of the building, and extending the width of the door, there was an aluminum, interlocking, threshold strip, about one inch high and four and a half inches wide. On top of this strip and made a part of it is another strip of aluminum, about one and three-eighths inches wide and three-eighths of an inch higher than the strip to which it is affixed. The upper edge of this strip extends about three-eighths of an inch over the bottom strip, so as to form a hollow groove, into which a metal strip on the bottom of the door fits and interlocks when the door is shut.
When the door is open, the slit, groove, or creviced part of the strip is concealed and invisible to a person walking on the floor in the exercise of ordinary care. The top and bottom strips are of the same appearance and color; they blend together and appear to be a solid metal strip. Because of the appearance of the strip when the plaintiff wife opened the solid door with the sun shining brightly, she did not and could not, in the exercise of ordinary care, discover that there was a groove or crevice between the top and bottom parts of the strip or that the top piece was not solid metal. When the plaintiff wife was leaving the building, the sun was shining brightly, and its effect then on her eyes was such as to make the condition of the strip less apparent. The plaintiff wife was in the exercise of ordinary care.
The door was used as an exit. The plaintiff wife had entered through another door into the reception room which was used and occupied by Wicker as a part of his office, and the door, beneath which the described threshold strip was located, was used as an exit from the reception room. There was no sign near the door to warn the plaintiff wife of the dangerous condition of the premises. While walking through the door, the plaintiff wife caught the toe of her right shoe in the threshold strip; she was tripped and thrown forward to a concrete walk outside the door, breaking her leg. The top and bottom layers of the weather strip were of the same color of aluminum, without contrast, giving the appearance of solid construction. The top strip appeared to be flush with the bottom strip, particularly when the sun shone on the metal strip. The conditions described were known to the defendants and unknown to the plaintiff wife, who was an invitee on the premises.
The defendants contend that the court erred in overruling their general demurrers to the petitions, because the allegations do not show negligence on the part of the defendants, and because it further appears that the failure of the plaintiff wife to exercise ordinary care for her own safety caused her injuries.
"Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Code 105-401. It is not disputed that the petitions show that the plaintiff wife was an invitee on the premises owned by one of the defendants and occupied by the other. No question is raised as to whether or not the possession of one of the defendants was exclusive of the other, as in a relationship of landlord and tenant.
The petition alleges the existence of a structure on the defendants' premises which, a jury would be authorized to find, would cause a prudent person reasonably to anticipate danger to persons walking over it. It appears that the interlocking, aluminum threshold strip was located beneath a solid door used as an exit from a patients' reception room. The door was closed as the plaintiff wife approached it to leave the premises. The base of the strip was four and a half inches wide and one inch high, with a narrower strip extending about three-eighths of an inch above the base. The upper strip was grooved so as to interlock with a similar strip attached to the door. The danger in this construction was that the grooved portion of the strip might catch the shoe of a person passing over it, and that, being located under a closed door, it may not have been so conspicuous as to have been readily noticed by a person with normal vision while walking across it and passing from the interior of the building to the outside, in the exercise of ordinary care for his own safety. It is alleged that the plaintiff wife did not know of the construction of the threshold strip, and that the defendants knew of the dangerous conditions existing. Although it is not alleged that the wife did not see the strip, it is shown that the danger thereof was not such as to have been necessarily seen and appreciated by her in the exercise of ordinary care in observing where she was walking.
In many respects this case is analogous to Robertson v. Liggett Drug Co., 81 Ga. App. 850 (60 S. E. 2d 268), where the plaintiff fell upon a ventilating grill elevated one and a half inches above the sidewalk; to Rogers v. Sears, Roebuck & Co., 45 Ga. App. 772 (166 S. E. 64), where the plaintiff tripped upon an upward projecting plank in a boardwalk; to Wynne v. Southern Bell Tel. &c. Co., 159 Ga. 623 (126 S. E. 388), where the plaintiff's heel caught in spaces between metal strips fastened to the tread of steps to the defendant's building; and to Sheraton Whitehall Corp. v. McConnell, 88 Ga. App. 725 (77 S. E. 2d 752), where the plaintiff slipped upon a sloping board at the edge of a dance floor in the defendant's ballroom.
The cases cited and relied upon by the defendants are distinguishable on their facts from the present case and do not require a ruling different from that here made. In Cuthbert v. Schofield, 35 Ga. App. 443 (133 S. E. 303), Williamson v. Kidd, 65 Ga. App. 285 (15 S. E. 2d 801), McCrory Stores Corp. v. Ahern, 65 Ga. App. 334 (15 S. E. 2d 797), McCarthy v. Hiers, 81 Ga. App. 365 (59 S. E. 2d 22), and Howerdd v. Whitaker, 87 Ga. App. 850 (75 S. E. 2d 572), the defendants were charged with constructive knowledge of the dangerous conditions on their premises; the petitions in this case allege that the defendants knew of the dangerous condition existing. Tinley v. F. W. Woolworth Co., 70 Ga. App. 390 (28 S. E. 2d 322), involved a platform scale in the aisle of a store, which was so obvious and apparent that it could not be considered dangerous. In Brim v. Healey Real Estate &c. Co., 56 Ga. App. 483 (193 S. E. 84), the plaintiff alleged that she tripped over a threshold strip, and it was said that "The plaintiff cautiously refrains from alleging that she did not actually know of the construction of the threshold which she alleges caused her injuries"; she was the employee of a tenant of the defendant, and it was held that her constant use of the doorway was sufficient to charge her with knowledge of its construction and a duty to avoid it. The petitions here allege that the plaintiff wife did not know of the dangerous condition of the doorway, and we may not assume that, as a patient of a dentist, she made such frequent use of the doorway that she was familiar with the danger inherent in its construction.
Questions of negligence, proximate cause, and failure to exercise ordinary care to avoid the consequences of another's negligence are ordinarily questions of fact for determination by a jury, and this is not such a plain and indisputable case that the court must determine these questions as a matter of law. The petitions set out a cause of action, and the court did not err in overruling the general demurrers thereto.
Judgments affirmed. Felton, C. J., and Quillian, J., concur.
Robert Duncan, Dudley Cook, contra.
T. J. Long, for L. A. Ray.
Smith, Field, Doremus & Ringel, Ogden Doremus, for Roy Wicker.
DECIDED JANUARY 10, 1955 -- REHEARING DENIED FEBRUARY 4, 1955.
Saturday May 23 03:10 EDT


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