Smith v. Swann

MacIntyre, J. Mrs. M. D. Smith brought suit against J. T„ Swann for damages for personal injuries. The defendant demurred generally to the petition, the judge sustained the demurrer, and dismissed the case. To this judgment the plaintiff excepted. The material allegations of the petition necessary to a decision-in this case are as follows: “Defendant maintains and operates-a parking lot on the north side of Edgewood Avenue between Exchange Place and Ivy Street, opposite the Hurt Building, in the-City of Atlanta; that the surface of said lot is of asphalt, stone,, or concrete material, except for broken places therein; that said lot is approximately 100 feet wide and 200 feet deep; that said lot slopes from the back on the north and the west sides toward Edgewood Avenue, and the southeast corner of said lot; that at the point where petitioner.was injured, as hereinafter alleged, approximately 20 feet from Edgewood Avenue and approximately 20 feet from the east side of said lot, said lot is approximately level except for a broken-in gully approximately 10 feet long,, commencing approximately 12 feet from the Edgewood Avenue sidewalk and extending back north approximately 10 feet toward the back of said lot, and parallel with a metal-covered shed over a wash-rack area on the east side of said lot; that said gully is- *146 approximately 18 inches in width at a point approximately 3 feet from the south end thereof next to the Edgewood Avenue sidewalk, and at said width is approximately 6 inches deep on the east side thereof; that the east border of said gully has a broken jagged concrete rim of irregular contour; that said gully slopes gradually from its 6-inch depth upward to the north end and west side, but at the south end the slope is not so gradual, and the east side of said gully has no slope. The east side of said gully is like the bank of a stream in that the descent from the surface level of the lot is abrupt and perpendicular, and at the deepest place some of the jagged edges of the bank extend out over the gully; that the gradual sloping surroundings, the depth, location, and formation of said gully are such that with the shadows and shades and varicolored areas of said lot at and about said gully, the scene is confusing to a casual user of said parking lot, and such as to cause persons without notice of a hole or gully to experience an unconscious feeling of security and. freedom from danger from falling or stumbling into a hole, or being entrapped by a gully, or other dangerous condition. Said parking lot has tall buildings all around it, cutting off sunlight except during the middle of the day, and said gully is at a point dividing a new surface area of said lot from an older or patched portion, and extends along and just west of the apron to said wash-rack area, and has been partly filled in with soil of a color blending with the colors of said lot formed from motor oil, concrete, dirt, dust, water, rubber, clay, and such substances as are common to the average parking lot; that on or about the 30th day of October, 1944, petitioner was a customer of defendant, using said parking lot to park her automobile, by defendant’s invitation, paying defendant a consideration for said privilege; that at or about 5:30 p. m. •on said date petitioner and her husband went to said lot to get their car, and one of defendant’s servants, agents, or employees brought petitioner’s car from the back of said lot to the front west-exit drive into Edgewood Avenue and placed the same at a point approximately 3 feet west of said gully, so that as petitioner walked in an ordinary and regular manner around the back of her car from the apron of said wash-rack area — where she had been waiting for several minutes, without seeing the gully — -she ¡stepped her left foot over and on the jagged edge of said east *147 border or bank of said gully at or about the deepest point thereof' in such a way that while her heel landed on one of said jagged' crags, the remainder of said left foot was extended out over and. into said gully, and this overbalanced petitioner, and said jagged, edge under her left heel shelled off or said heel slipped on said crag as petitioner’s weight came down on the forepart of her left foot, causing her to stumble and fall forward to her left side,”' resulting in certain described injuries. The defendant relies upon the case of Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72 (190 S. E. 354), in which it was-said: “The allegations showed that the plaintiff was obliged to-step up to get on the rostrum. Construing the petition most strongly against the plaintiff, and there being no allegation that the room was not properly lighted, it will be assumed that the open space between the rostrum and the wall was obvious. Being-so, she was bound to know of danger of stepping off the edge of the rostrum when she stepped back to avoid striking her companion. In such circumstances her act in stepping on the edge-of the rostrum and falling showed such want of ordinary care as would prevent a recovery. Code, § 105-603, as applied in Ball v. Walsh, 137 Ga. 350 (73 S. E. 585).” This ease affirmed the decision of the Court of Appeals in the same case (J. B. Pound Hotel Co. v. Vaissiere, 54 Ga. App. 162) (187 S. E. 279). The Vaissiere case (184 Ga. 72) refers with approval to the dissenting-opinion in Wardlaw v. Executive Committee of the Baptist Convention, 47 Ga. App. 595 (170 S. E. 830). These are eases where-the question of visibility was not involved, and where the defect would have been plainly visible to the injured party and others, if they had looked where they were going, for they could easily and plainly have seen the defect. Tinley v. Woolworth Co., 70 Ga. App. 390, 394 (28 S. E. 2d, 322). In short, the defects, if any, were obvious. In the instant case the defendant was an invitee, and “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. The gist of the cause of action here is that on account of an. optical-illusion the defect was not visible under the facts alleged,. *148 and hence not obvious. Fuller v. Louis Steyerman & Sons Inc., 46 Ga. App. 830, 832 (169 S. E. 508). The petition in effect alleged that the defendant knew of the defect (“gully”), but nevertheless, while the plaintiff was waiting for the defendant to bring the automobile from another part of the parking lot to where she was waiting, the defendant brought it and so parked it that it was three feet on the opposite side of the gully from where she was waiting, and as she walked in an ordinary manner toward the ear, in order to enter it, she did not see the “gully,” but '•“stepped her left foot over and on the jagged edge of said east border or bank of said gully at or about the deepest point thereof in such a way that, while her heel landed on one of said jagged ■crags, the remainder of said left foot was extended out over and into said gully, and this overbalanced petitioner, and said jagged edge under her left heel shelled off or said heel slipped on said crag as petitioner’s weight came down on the forepart of her left foot, causing her to stumble and fall forward and to her left side,” resulting in certain described injuries. The facts pleaded show that the plaintiff did not see the gully, not because she was not looking where she was going, but because the formation of the gully, with the shade and shadows of the varicolored areas of said parking lot at or about the said gully, was such as to present an unreal and misleading image to the vision, and gave to 'the part of the parking lot in question a deceptive appearance, so as to cause a person (the plaintiff in this case) walking across a part of the lot in question “in a regular and ordinary manner” at the time, place, and under the circumstances in question, while in the exercise of ordinary care, to believe that there was no gully, and thus cause the plaintiff to make a false step and fall and be injured as alleged. Western & Atlantic Railroad v. Reed, supra; Metropolitan Street Railroad Co. v. Johnson, 90 Ga. 500 (5) (16 S. E. 49). In the instant case, where the allegations of the petition show no duty on the part of the plaintiff to know of the alleged defects, and where the acts of negligence of the defendant, relied upon, were stated in the petition, and it was further alleged that such negligence was the proximate cause of the injury, “it has- not been held necessary in this State for the plaintiff to allege negatively that he did not cause the injury to himself by his own negligence, or why he could *149 not by the use of ordinary care have avoided the alleged injury. If it appeared affirmatively from the allegations that the plaintiff caused the injury by his own negligence, or could have avoided the consequences of the defendant’s negligence by the use of ordinary care, and failed to do so, this would furnish ground for demurrer; but such is not the case here.” Lamb v. Hall, 145 Ga. 331, 332 (89 S. E. 193); King Hardware Co. v. Ennis, 39 Ga. App. 355, 365 (147 S. E. 119). This court has many times held that questions- as to diligence and negligence, including contributory negligence and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury and such as this court will decline to solve on demurrer, except in palpably plain and indisputable cases. Applying this rule to the instant petition, we can not say, as a matter of law, that no acts of negligence were set out against the defendant, or that the plaintiff was so negligent or lacking in ordinary care as to prevent a recovery. The petition as a whole, we think, set forth a cause of action against the defendant, and the judge erred in sustaining the general demurrer and dismissing the case. There being a dissent in the division of this court to which this case was originally assigned, the case was considered and decided by the court as a whole pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L., 1945, p. 232). Judgment reversed. All the Judges concur, except Broyles, G. J., who dissents.