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PIGGLY WIGGLY, MACON INC. v. KELSEY.
33421.
Damages; from Macon City Court-- Judge Baldwin. November 29, 1950.
FELTON, J.
1. The petition does not allege that the plaintiff was an invitee upon that portion of the defendant's premises where the alleged injuries occurred, and thus does not state a cause of action against the defendant.
2. Ground 4 of the renewed special demurrer should have been sustained.
C. E. Kelsey sued Piggly Wiggly, Macon Inc., for damages allegedly caused by the negligence of the defendant. The petition as amended alleged substantially: On November 18, 1949, the defendant was operating one of its stores at 565 Poplar Street, Macon, Georgia; and for some period of time prior thereto the plaintiff had been selling sawdust to the said store for use by the defendant on its floors. On said afternoon, around 3 or 4 p.m., the plaintiff went into said store and asked the manager of the market how much sawdust he would want delivered that day, and the manager ordered two sacks. The plaintiff then went to his truck and brought in a sack of sawdust to the back of the store to the elevator, opened the door or gate of the elevator, felt inside to see if the elevator was there, and finding it there went into the same and placed a sack of sawdust on said elevator. He then left the elevator, left the gate open, and went to the truck to get a second sack of sawdust, got it from the truck, took it back into the store, went to the back of said store where the elevator was located, and went into the same for the purpose of placing the second sack of sawdust on it and delivering it to the point in the market where he was intending to place it. When the plaintiff returned to the elevator the second time to place said sack of sawdust in it, the gate was still open; it was dark inside, and the plaintiff looked into said elevator and thought he saw the sides of the same which were of a dark color; and, also thinking that he saw the floor of the same, and thinking that the elevator was still there, he walked into the same. But in the meantime said elevator had been moved by one of the employees of the defendant, Clarence H. Shaw; and when the plaintiff walked into the same, instead of stepping on the floor of the elevator, he fell through the shaft into the bottom some 20 to 25 feet below, severely injuring and damaging him in enumerated particulars. There was no light inside the elevator, nor in front of the elevator, nor to the side of the elevator at all times mentioned herein; and there was a partition between the elevator and the rest of the store of the defendant, with only one door leading from the store into said space in front of the stairs and elevator; and the only light available at and around said elevator was the little light that came from the shaft and from the door leading into the store. When the plaintiff went to the elevator the first time for the purpose of placing on the elevator the first sack of sawdust,
The plaintiff further alleged that at all times mentioned a valid ordinance of the City of Macon existed, regulating the installation, repair, operation, and inspection of elevators, which provided: that all existing electric freight elevators not equipped with hoist-way door lock and electric contacts should be equipped with the same; that all passenger and freight elevators should be inspected by a qualified elevator mechanic or engineer not less than every 90 days; and that inspection records be kept on the care of said elevator and record of inspection, to be forwarded to the city electrical department; and that it was unlawful to run or operate any elevator without first having obtained a proper certificate from the electrical departments The plaintiff further specified as acts of negligence: that the defendant negligently operated said elevator at all times mentioned, in that the elevator was not equipped with hoist-way door locks and electric contacts, as required by said ordinance, and that such violation of the ordinance constituted negligence per se; that, had the elevator been equipped with such, it could not have been moved with the gate or door open, and thus the plaintiff would not have been injured; that the defendant was further violating said ordinance in that said elevator had not been inspected as required by said ordinance; that, on the day of the plaintiff's injury, the defendant was operating said elevator without a proper certificate from the city electrical department, in violation of said ordinance.
The defendant filed to the petition a general and several special demurrers, which the court overruled, and the defendant excepts.
1 (a). The plaintiff in error contends that the general demurrer should have been sustained because the petition allegedly showed on its face that the plaintiff's own negligence was the proximate cause of the damages sued for. We agree that the general demurrer should have been sustained, but not for this reason. Except in clear and palpable cases, questions of negligence, contributory negligence, and proximate cause are questions for a jury. The plaintiff in error contends that if the plaintiff exercised the caution alleged in ascertaining that the elevator was in place when he placed the first sack of sawdust on the elevator, he should also have exercised the same caution when returning to the elevator with the second sack; and that failure to so exercise this caution was lack of ordinary care upon the part of the plaintiff. We do not think that such constituted lack of ordinary care as a matter of law. A jury could find; if the evidence substantiates the pleading, that a prudent person under like circumstances could reasonably have expected that the elevator was still in place as he had left it; and this is especially true in view of the allegations that the elevator gate or door was still open, as he had left it only a short time before, and that in the light and shadows it appeared the elevator was still in place. Camp v. Curry-Arrington Co., 41 Ga. App. 53 (151 S. E. 837). As was stated by this court in Lowe v. Atlanta Masonic Temple Co., 79 Ga. App. 575, 580 (54 S. E. 2d, 677), cases such as the instant case all rest on their own peculiar facts, and the cases cited by the plaintiff in error to support its contention are distinguishable upon their facts from the instant case.
(b) We think, however, that the general demurrer should have been sustained on the ground that the plaintiff does not allege facts showing that he was an invitee upon the elevator and the premises adjacent thereto, and thus entitled to the degree of care owed an invitee. A person may be an invitee as to certain parts of premises and a licensee or trespasser as to other parts. Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 (116 S. E. 17); Central Georgia Power Co. v. Walker, 144 Ga. 124 (86 S. E. 319). If his invitation does not expressly or impliedly extend to the latter parts of the premises, or presence in the latter parts of the premises is not an essential to, or a related element of, the purpose of the initial invitation, a person is not an invitee when in the latter parts of the premises. The plaintiff alleges facts to establish himself as an invitee to the store portion of the defendant's premises, and bases his right of recovery on the theory of being an invitee; but he fails to allege that the initial invitation expressly extended to the use of the elevator, which was not located in the store portion of the premises, or that such use was an essential part of his initial invitation, or that he customarily used the elevator for the purpose of moving the sawdust from one floor to another with the knowledge of the defendant, when he sold and delivered sawdust to the defendant. Nor does the plaintiff allege that an agent of the defendant authorized to extend an invitation to use the elevator and the premises adjacent thereto saw him place the first sack of sawdust on the elevator and allowed him to so use the elevator without objecting thereto, so as to allege an implied invitation to use the elevator. In the absence of an allegation of at least one of the above propositions, the plaintiff fails to allege that he was an invitee while using the elevator; and, in view of the failure to so allege, the petition did not state a cause of action against the defendant, and the court erred in overruling the general demurrer.
2. Ground 4 of the renewed special demurrer is meritorious. The plaintiff only alleges those sections of the Macon elevator ordinance pertaining to the installation of hoist-way door locks and electric contacts on existing installations, and does not allege any provisions of the ordinance relating to the requirements of new installations. He does not allege that the elevator involved in the instant case was in existence at the time of the passage of the ordinance. In the absence of an allegation that the elevator was an existing installation, as referred to in the ordinance at the time the ordinance was passed, or an allegation setting out the requirements in the ordinance as to a new installation of elevators, this demurrer should have been sustained.
3. Ground 3 of the original special demurrer and grounds 2, 5, 6, and 7 of the renewed special demurrer, because they pertain to the merits of the case, are merged in the general demurrer.
4. The remaining grounds of the special demurrer are without merit.
The court erred in overruling the general demurrer and ground 4 of the renewed special demurrer.
E. W. Maynard, Carlton Mobley, contra.
John D. Comer, Harris, Harris, Russell & Weaver, for plaintiff in error.
DECIDED MARCH 15, 1951.
Saturday May 23 05:33 EDT


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