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CONAWAY v. MCCRORY STORES CORPORATION.
32869.
Action for damages; from Fulton Superior Court-- Judge Pharr. November 9, 1950.
MACINTYRE, P. J.
The court did not err in sustaining the general demurrer to the petition.
Mrs. Pearl L. Conaway brought an action for damages against McCrory Stores Corporation. The material allegations were substantially as follows: On March 22, 1949 about 12:30 o'clock Mrs. Conaway a lady of 53 years of age, entered the southernmost doors on Whitehall Street of a five-and-ten-cent store owned and operated by the defendant at 73 Whitehall Street, S. W., in Atlanta. She intended to shop in the store and was at all times referred to herein as an invitee of the defendant. Since approximately 9 o'clock a.m. and up to 12:30 o'clock p.m. and at 73 Whitehall Street it had been raining fairly constantly in almost continuous showers. The floor of the defendant's store for a space of one or two feet just inside the southern most doors on Whitehall Street was at all times herein and at the time the plaintiff stepped therein slippery, unwalkworthy and dangerous due to the negligence of the defendant and the defendant's employees and agents acting within the scope of their employment. This condition and danger was not an obvious and apparent danger which could have been discovered by Mrs. Conaway by the exercise of ordinary care. Mrs. Conaway had no knowledge or notice of the defective condition of "the unapparent dangerousness or extreme dangerousness or unsafeness of the floor just inside said southernmost doors." Mrs. Conaway was one of many shoppers coming into the store and had no opportunity to make a careful, minute inspection or examination of the floors or of the dangerousness or slipperiness of the floors since she had just entered and the floors for a space of two or three feet just inside the doors contained a serious latent defect and hidden danger of being extremely slick and slippery and wet with water or some substance thereon which was unknown to Mrs. Conaway and she had no realization or apprehension of the extreme danger or risk thereof. Just after opening the southernmost doors of the defendant's store, the plaintiff, through no fault or lack of ordinary care on her own part, proceeded and took one or two steps into the store when her foot skidded across the slippery floor causing her to be thrown to the floor and to suffer enumerated injuries, which were the proximate result of the negligence of the defendant and of its employees and agents acting in and for the defendant in the scope of their employment. Up until 12:30 o'clock p.m. and the time the plaintiff fell on March 22, 1949, neither the defendant nor its agents, employees, or servants "had swept up, mopped, cleaned up, spread sand on or gravel upon or inspected or did anything to correct the slippery wet condition of the floors just inside the southernmost doors of its store . . . although water and dirt had been regularly tracked into said store from numerous customers between 9 o'clock and 12:30 o'clock p.m." The allegations of negligence on the part of the defendant and its employees and servants "while working in the scope of their employment for the defendant," are: "In failing for an unreasonable length of time from 9 o'clock a.m. to 12:30 p.m. . . . to mop up, clean up, sweep up, spread sand on or gravel upon or do anything to correct the slippery condition of the floor of the defendant's store . . . whereupon customers were invited to walk upon, . . . when defendant actually knew that whenever it rained steadily for an hour or more their scores and hundreds of customers would bring in water and dirt into said store just inside said doors, and that said action caused said floors just inside of said doors to become extremely slippery and dangerous; (b) In failing to warn petitioner Mrs. Conaway at the time and place above described . . . that the floor in its store
just inside the . . . doors on Whitehall Street was slippery and extremely dangerous when defendant actually knew that said floor was extremely slippery and extremely dangerous at all times herein and 12:30 o'clock p.m. on March 22, 1949; (c) In failing for an unreasonable length of time . . . to carefully inspect its floors just inside its southernmost doors on Whitehall Street to see whether water and debris had been tracked into said store and to see whether said floors were slippery and dangerous, the result of which careful inspection would have disclosed to defendant that said floors just inside its southernmost doors were extremely slippery and dangerous; (d) In failing to mop up, clean up, sweep away, put gravel or sand down upon floors or do anything to correct slippery, wet and extreme dangerous condition of floors of defendant's store . . . although defendant had constructive notice. of the wet, slippery and extremely dangerous condition of its floors by virtue of the fact that for years before and up until just before March 22, 1949, the defendant had employed several porters, one of whose express and main jobs was to put sand and gravel down promptly in front of said . . . doors whenever it rained as long as an hour or frequently less so as to keep said floors from becoming and remaining slippery from water and debris being tracked in from the streets, and by virtue of the fact that several persons had slipped and fallen before upon said floors when said porters did not promptly put sand down there or sweep said water and debris away, and by virtue of the fact that officers, managers and employees and agents of the defendant, acquainted with the above practice and knowledge of defendant and acquainted with the fact that said floors became extremely slippery and dangerous whenever it rained for any length of time during business hours, had walked across said floors at the time and place above mentioned between 9 o'clock a.m. and 12:30 p.m. on March 22, 1949."
The defendant's general demurrer was sustained and the petition dismissed, and the plaintiff excepted.
"It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference, on demurrer, will prevail in determining the rights of the parties. Krueger v. MacDougald, 148 Ga. 429 (1) (96 S. E. 867).
"It is an established rule of pleading that conclusions in conflict with the pleaded facts are to be disregarded ( Flynt v. Southern Railway Co., 7 Ga. App. 313 (1), 316, 66 S. E. 957), and general allegations that a person could not have avoided the consequences of another's negligence by the exercise of ordinary care after it was or should have been discovered must yield, on demurrer, to the particular facts shown where inferences from the facts are necessarily to be drawn contradictory of the conclusions. Wood v. Pynetree Paper Co., 29 Ga. App. 81 (114 S. E. 83 (4)) . . .
"Every case of this character must stand largely upon its own facts, and questions of negligence are questions of fact, and therefore come within the peculiar province of the jury; but, nevertheless, where facts are considered on demurrer and any rational interpretation thereof requires the conclusion, as a matter of law, that there was a want of ordinary care on the part of the plaintiff . . . the demurrer should be sustained and the case ended without requiring the defendant to resist a possible recovery not authorized under the facts as alleged. Southern Railway Co. v. Young, 20 Ga. App. 362, 367 (93 S. E. 51); Hill v. Louisville & Nashville R. Co., 124 Ga. 243 (2) (52 S. E. 651, 3 L. R. A. (N.S.) 432)." Moore v. Seaboard Air-Line R. Co., 30 Ga. App. 466 (118 S. E. 471).
The question involved is not one of dangerous construction, but one of negligent maintenance. McCrory Stores Corporation v. Ahern, 65 Ga. App. 334 (15 S. E. 2d, 797). There are many conclusions drawn in the petition which state that the floor was slippery and dangerous and that the plaintiff fell as a result of the failure of the defendant to remove the water and mud from the floor at the entrance to its store. However, the specific facts alleged in the petition upon which those various conclusions are based are that when it rained customers brought rainwater and mud into the entrance on their shoes and that this caused the floor at the entrance to become slippery and dangerous. Where the defendant was aware of the presence of the substance upon the floor which produced a slippery condition and fails to remove it, the jury may be warranted in inferring negligence from his nonaction if the substance is not discernible to the invitees by the exercise of reasonable alertness. If the owner of a store invites the public to enter, he is required to exercise ordinary care to maintain his floors in a condition reasonably safe for the purposes of the invitation. Ordinarily, if the floor is without structural defects, he is not required to place mats at the entrance ways on rainy days nor to mop up rainwater tracked in by customers provided the condition of dampness is readily discernible to those who enter. S. S. Kresge v. Fader, 116 Ohio St. 718 (158 N. E. 174, 58 A. L. R. 132); Murray v. Bedell Co., 256 Ill. App. 247.
A finding of negligence of the proprietor of a city store is not warranted by evidence merely that, on a day when it has rained, a customer slips and falls in a recessed entrance to the store where it is wet and there is a coating of mud. Grace v. Jordan Marsh Co., 317 Mass. 632 (59 N. E. 2d, 283). Before an owner can be held liable for the slippery condition of his floors produced by the presence of a foreign substance thereon, it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care. Lyons v. Lich, 145 Ore. 606 (28 Pac. 2d, 872).
We now come to the application of these rules to the present case. The petition, in effect, alleges only implied knowledge on the part of the defendant of the presence of the water and debris on the floor and of its slippery condition. There is no question of the light being dim or that shadows or anything else obscured the view of the plaintiff of the place or entrance in question as she approached. The question of visibility is not here involved for it is obvious that had the plaintiff looked she could have seen the condition of the floor. The question then appears to be, whether or not, under the evidentiary facts alleged in the petition, the defendant was liable to the plaintiff, an invitee upon such premises, where such invitee is caused to slip and fall by reason of such rainwater and mud upon the floor of the entrance. From the allegations of fact it is apparent that the danger, if any, was as clearly evident to the plaintiff as to the defendant and that she was aware of the condition of the floor and of the possibility of sustaining a fall before she undertook to pass over or along the floor of the entrance in question. The condition described in the petition is one that is not unusual, but is customarily to be found on such days, as the day described in the petition, in entrances of this character and on the sidewalks and entrances to public places.
It is the rule in this State that the plaintiff cannot recover unless the defendant's negligence exceeds that of the plaintiff. In the instant case the plaintiff was as well apprised of the condition existing in the entrance as the defendant and should be held to as high a degree of care for her own safety as the defendant. Murray v. Bell, supra; Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 S. E. 2d, 680).
For the foregoing reasons the judgment of the superior court sustaining the general demurrer was not erroneous.
Judgment affirmed. Gardner and Townsend, JJ., concur.
Haas & Hurt, contra.
Francis G. Jones Jr., for plaintiff in error.
DECIDED JULY 7, 1950.
Saturday May 23 05:52 EDT


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