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MILLER et al. v. BART.
Action for damages. Before Judge Heery. Savannah City Court. January 27, 1954.
The court did not err in overruling the general demurrers to the petition, in which recovery was sought for personal injuries sustained by a customer of a filling station upon stumbling over the handle of an automobile jack being used near the door to the filling-station office.
Georgetta Bart brought an action against W. N. Miller and The Texas Company, operators of a filling station in Savannah, to recover damages for personal injuries alleged to have been sustained by Mrs. Bart under the following circumstances: Mrs. Bart drove to the defendants' filling station to buy gasoline for her automobile; it was filled, and she went into the defendants' office to pay her bill. No automobile was parked near the office when she went inside, but while she was there, one was parked near the entrance of the office, and one of the defendants' employees undertook to remove a tire from the parked automobile. He pushed a jack under the rear of the automobile, raised it, and left the automobile unattended, with the jack exposed and extending out in front of the office. The defendants' office is situated on an elevated foundation one step above the grade of the driveway, and there is a narrow, elevated pathway in front of the office and on the same level. Mrs. Bart's automobile was being serviced while she filled out a check in the office to pay for the gasoline. As she was leaving the office, she met the defendant Miller at the door and handed her check to him. Miller engaged Mrs. Bart in conversation, and was conversing with her as she proceeded to her automobile. Mrs. Bart had to circle the automobile parked in the doorway to go back to her car. Because of the manner in which the automobile was parked, because the jack was on the level of the driveway, close to the ground and close to the step, and because her attention was distracted by Miller's conversation, Mrs. Bart's view of the jack was obstructed, and she did not and could not see it and had no reason to suspect that it was there, until she stepped from around the side of the parked automobile and onto the jack. She tripped and was thrown to the driveway, sustaining certain injuries.
It was further alleged: In addition to selling gasoline and oil, the defendants also engaged in washing automobiles and repairing tires. The employee who placed the jack under the automobile to change a tire was acting within the scope of his employment and in furtherance of the defendants' business. While Mrs. Bart was in the office, the employee parked the automobile in front of the office door knowing that she was in the office and would return to her automobile. He knew of her presence because he should have seen her unoccupied automobile. He negligently created a pitfall in allowing the jack handle to extend and be exposed beyond the parked automobile, knowing that Mrs. Bart was likely to trip over it as she left the office, and this negligence was the proximate cause of the injuries sustained by Mrs. Bart. When she stumbled over the jack, the defendant Miller rushed to her aid, picked her up, and reprimanded his employee for parking the automobile and placing the jack at a place where Mrs. Bart could be and was injured. When Mrs. Bart was leaving the office she did not know of the presence of the extended jack; she did not see it, nor did she have any reason to anticipate that the defendants' employee would allow a jack to extend into the path of patrons of the filling station who were leaving the office after transacting business with the defendants.
The renewed general demurrers of the defendants to the foregoing allegations of the amended petition were overruled, and the exception here is to that judgment.
The defendants argue that the court erred in overruling their general demurrers because the allegations of the petition show: (1) that the plaintiff could have avoided her injuries by exercising ordinary care for her own safety; (2) that, as an invitee, the plaintiff should have reasonably expected to find, on business premises, tools and equipment necessary to conduct the business; and (3) that recovery is sought upon inconsistent theories in a single count.
Addressing these contentions in reverse order, we find no such inconsistency in the allegations of the petition as appeared in the case of DeLay v. Rich's, Inc., 86 Ga. App. 30 (70 S. E. 2d 546). There the plaintiff stumbled over a footstool in the aisle of a store's shoe department, and alleged that she could not see it because of the presence of other people in the aisle, and also because of glare from a metal object and the improper lighting of the aisle. These allegations showed that she could not see the footstool because of the presence of other customers, and not because of the defendant's negligence in maintaining the metal object and in lighting the aisle. The three reasons advanced in the petition in this case for the plaintiff's failure to see the jack handle are not inconsistent. The distraction of the plaintiff's attention through her conversation with the defendant Miller is consistent with, and helps explain, her failure to notice the jack handle, which was also alleged to have been obscured by the automobile and the curb or step at the edge of the driveway. The defendants are not charged with negligence in conversing with the plaintiff, but this is one of the circumstances under which it was their duty to exercise ordinary care.
It was also held in the DeLay case, supra, that the defendant was not negligent in using a footstool in the aisle of its shoe department in a customary manner. In Tinley v. F. W. Woolworth Co., 70 Ga. App. 390, 394 (28 S. E. 2d 322), it was said that the location of a penny scale, four and a half feet high, in the aisle of the defendant's store was not unusual and was a common practice. And in Moore v. Kroger Co., 87 Ga. App. 581 (74 S. E. 2d 481), the plaintiff was barred from recovery by her own negligence in walking into a self-service push cart in a grocery store. In each of those cases, the items of business equipment were of such a size as to be obvious and in a place where they were to be expected.
The petition under review shows that the jack was not obvious, but was concealed by the car and by the step at the edge of the pathway by the office. We do not hold that a customer of a filling station is bound to anticipate that a jack will be used to change a tire in front of the office. Whether the jacked-up automobile, which must have been obvious, was sufficient to put the plaintiff on notice of the jack, under and extending behind the car, must be determined by a jury under the evidence.
Although every such case stands upon its own alleged facts, this case has much in common with Glover v. City Council of Augusta, 83 Ga. App. 314 (63 S. E. 2d 422), and with Mason v. Frankel, 49 Ga. App. 145 (174 S. E. 546), in each of which the plaintiff's attention was attracted to window displays, just as in this case the plaintiff's attention was diverted by her conversation with the defendant Miller. And in each of the cases cited above the plaintiff struck an object not easily seen or partially concealed, as was the jack handle in this case. As stated in the Glover case, supra, p. 316: "One is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted as at other times." The petition does not show, as a matter of law, that the plaintiff had reason to apprehend the existence of the defendant's negligence and could have avoided her resulting injuries by the exercise of ordinary care.
A cause of action was alleged by the plaintiff, and the court did not err in overruling the general demurrers to the petition.
Emanuel Kronstadt, contra.
Julian F. Corish, Bouhan, Lawrence, Williams & Levy, for plaintiffs in error.
Saturday May 23 03:43 EDT

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