670 NEW STREET, INC. v. SMITH

Mr. and Mrs. Smith brought separate actions for damages against the defendant, 670 New Street, Inc. The basis upon which recovery was sought in each case was on account of injuries sustained by Mrs. Smith as a result of a fall down a flight of stairs on the defendant's premises. The trial judge overruled the general demurrers filed by the defendant to each petition, and the assignment of error here in each case is to the overruling of the respective demurrers. Insofar as material to the questions here presented, the petitions, as finally amended, alleged the following facts: Mrs. Smith was a laboratory technician and in the practice of her profession rented space in the basement of the defendant's building. As a means of ingress and egress to and from the space rented by the plaintiff, the defendant provided a stairway which led from the ground level downward to the basement level, said stairway having at the head thereof a door opening onto an unpaved and unsheltered driveway and parking area. Defendant provided no handrail for the stairway. This stairway and entrance was a common passageway for the use of the plaintiff and other tenants of the defendant and for patients, customers and invitees of the tenants. In order to reach the doorway at the head of the stairs the defendant provided a single step up from the ground level. Immediately in front of and parallel to the face of this step there was a terra cotta pipe which served to conduct rain water from a down spout on the office building to the unpaved surface of the driveway and parking area. "Said terra cotta pipe was not in the same condition that it was in when it was installed. Due to erosion, the action of the weather and the fact that it was from time to time `run over' by vehicular traffic, its condition changed from day to day. At the time at which the incident on which this petition is based occurred, the open end of said terra cotta pipe terminated in front of the first step and was irregular and jagged. Said terra cotta pipe was enclosed in a concrete covering which obscured the view of said jagged end, and its existence could not have been discovered by . . . [the plaintiffs] in the exercise of ordinary care . . . As a result of the movement of vehicular traffic, the effects of weather, the flow of water over the surface of said driveway and parking area, the concentration of water conducted through said terra cotta pipe, and the `packing' of the gravel surface of said driveway and parking area, the surface of said driveway and parking area immediately in front of said first step was lower than that for which it was originally intended, and the height or `rise' of the first step was consequently greater than originally intended. In addition, the height of the step at its easterly end was greater than its height at its other parts. Said condition was continually changing and the exact height of said first step is peculiarly within the knowledge of defendant, but petitioner alleges on information and belief that the height of said step at portions other than its easterly end had been increased by four inches and that the height of the step at its easterly end was three inches greater than at its other parts. The defendant, through its officers and agents, and particularly through Dr. William E. Pound and Dr. E. C. McMillan, had actual knowledge of the increased rise in the jagged end of the pipe and in the exercise of ordinary care and diligence would have obtained knowledge of the other dangerous conditions heretofore and hereafter mentioned. Mrs. M. O. Smith . . . [was] unaware of the aforesaid dangerous condition and [was], in all respects, in the exercise of ordinary care and diligence in using such steps for the purpose intended by the defendant and for safe passage by persons using the same in a normal and usual manner as was being done by Mrs. M. O. Smith. On the date aforesaid, Mrs. M. O. Smith was proceeding from the common parking area of the defendant to the rental space occupied by Mrs. M. O. Smith where she owned and operated a laboratory for her clients and patients which included doctors and their medical patients. Mrs. M. O. Smith approached the aforesaid flight of steps from an easterly direction, placed her left foot on the surface of the first step and then sought to bring her right foot up to the same level. While so attempting to raise her right foot, the toe end of her shoe was caught by the open and ragged end of the aforesaid terra cotta pipe, causing her to lose her footing by reason of which she fell down the entire flight of steps. As she fell, Mrs. M. O. Smith sought to break her fall by grasping for the wall along said stairway, but, because there was no handrail provided along said stairway for her to grasp, she fell down the entire flight of stairs. The defendant, at the time of the aforesaid incident and prior thereto, was negligent: (a) In so constructing the aforesaid steps and terra cotta pipe as to render the same unsafe for passage by persons, including Mrs. M. O. Smith, using the same in the ordinary and usual way and for the purpose for which the same were intended; (b) In maintaining the aforesaid dangerous condition, which condition unreasonably, unnecessarily and negligently endangered the life, limb and safety of persons lawfully using the same, including Mrs. M. O. Smith; (c) In permitting the erosion of the surface of said driveway and parking area and maintaining such negligent condition; (d) In constructing and maintaining said terra cotta pipe and its exposed and broken end, so that the same alone or in conjunction with its immediate location in front of said first step created a dangerous and negligent hazard; (e) In failing to repair, reconstruct or relocate said step, terra cotta pipe and adjacent surface of said driveway and parking area so as to remove the said hazard and render the same safe for normal travel and for the use intended; (f) In failing to warn Mrs. M. O. Smith of the aforesaid hazards and unsafe condition; (g) In failing to properly inspect said dangerous condition to ascertain and determine that the same was safe for travel and was reasonably suited for the use intended for it by the defendant; (h) In doing any of the aforesaid acts and failing in inspection and correction of the aforesaid condition and in warning Mrs. M. O. Smith after notice of the same or after notice of the same should and could have been obtained by the defendant in the exercise of ordinary care and diligence; (i) In injuring and damaging Mrs. M. O. Smith; (j) In failing to construct a railing alongside the stairway down which Mrs. M. O. Smith fell, which failure constitutes negligence as a matter of law because in violation of the provisions of that portion of Section 1108.05 of the Building Code of The City of Macon, which reads as follows: `Except where permitted in aisles, stairs shall have walls or well-secured balustrades or guards on both sides, and shall have handrails on both sides except that stairs of less than forty-four (44) inches in width may have handrails on one side only.'"

FRANKUM, Judge.

It is fundamental, of course, and requires no reiteration of authority, that the petitions must be construed on demurrer most strongly against the plaintiffs. In so construing the petitions it may be conceded at the outset that under the facts alleged the defendant had the duty of exercising ordinary care in keeping the premises and approaches safe for the plaintiff's use. Code § 105-401; Crossgrove v. Atlantic C. L. R. Co., 30 Ga. App. 462 (1) ( 118 S.E. 694); Camp v. Curry-Arrington Co., 49 Ga. App. 594 (1) ( 176 S.E. 49). However, if the plaintiff, Mrs. Smith, by the exercise of ordinary care could have avoided the consequences to herself caused by the defendant's negligence, she is not entitled to recover. Code § 105-603. As was said in Nabors v. Atlanta Biltmore Corp., 77 Ga. App. 730, 733 ( 49 S.E.2d 688), quoting in part from Mansfield v. Richardson, 118 Ga. 250 (2) ( 45 S.E. 269), "The word `avoided,' as used in this section, is of broad and comprehensive meaning, and `in case of personal injuries the plaintiff as a conscious human agent is bound to exercise ordinary care to avoid the consequences of the defendant's negligence, by remaining away, going away, or getting out of the way of a probable or known danger.'" See Southern R. Co. v. Hogan, 131 Ga. 157, 160 ( 62 S.E. 64). "The rule of law that in order for the plaintiff to recover he must have exercised ordinary care to avoid the consequences to himself of the defendant's negligence is not limited to negligence which may have been actually discovered, but it extends to negligence which might have been discovered by exercise of ordinary care by the plaintiff." Georgia Power Co. v. Maxwell, 52 Ga. App. 430 (3) ( 183 S.E. 654).

Ordinarily questions of negligence on the part of the plaintiff and of the defendant are issues to be decided by a jury, but, where the plaintiff's petition shows on its face that no right to recover exists, and this question is raised by a general demurrer, it is the duty of the court to sustain the demurrer and dismiss the petition, Central R. Co. v. Larsen, 19 Ga. App. 413, 418 ( 91 S.E. 517), and general allegations that the plaintiff could not have avoided the consequences of the defendant's negligence by the exercise of ordinary care must yield on demurrer to contradictory facts and inferences properly drawn therefrom which show that the plaintiff could have avoided such negligence. Reese v. Southern R. Co., 35 Ga. App. 369 ( 133 S.E. 284). Applying the foregoing rules of law to the allegations of fact contained in the petitions in these cases, they show that the plaintiff, Mrs. Smith, could have avoided the negligence alleged against the defendant, and that neither she nor Mr. Smith can recover.

The petitions allege that the plaintiff, Mrs. Smith, was a tenant of the defendant. It is not alleged for what period of time she had been a tenant at the time she was injured, but it may be assumed (construing the petitions most strongly against the plaintiffs) that she had been a tenant for a sufficient length of time to permit her to become thoroughly familiar with the visible physical surroundings of the entrance which she used to get to and from the rented premises. Brim v. Healey Real Estate c. Co., 56 Ga. App. 483, 485 ( 193 S.E. 84). Even if this is not so, the petitions fail to allege any reason for her inability to see the conditions by the exercise of ordinary care as she approached the step, White v. City of Manchester, 92 Ga. App. 642, 644 (2) ( 89 S.E.2d 581), and they will be construed as alleging that there was sufficient light, and that she could have seen the condition of the step and adjacent area had she looked. So construed, the petitions show that Mrs. Smith, before placing her left foot on the step, placed her right foot near the face of the step and adjacent to and close to the open end of the terra cotta pipe with its concrete covering which she could see, and that after she had placed her left foot on the step and sought to raise her right foot, she caught her toe on the overhanging end of the pipe. She does not allege that she did not know of the general conditions which she alleged existed at the time and place, and her allegations must be construed as averring that she did know of them. She, therefore, had a duty to avoid the dangerous place of which she knew. Finley v. Williams, 45 Ga. App. 863, 864 (2) ( 166 S.E. 265). She alleges that she could not see the jagged end of the pipe because it was obscured by the concrete covering. She does not allege any reason why she could not see the concrete covering the pipe. She had the duty, however, of using her eyesight to observe the conditions of the premises which she could see, and she could not close her eyes to obvious danger and then hold the defendant liable, even though the defendant also knew of the conditions. Properly construed the petitions fail to show that Mrs. Smith did not know of the conditions. Her lack of knowledge was an essential element of her case. Hill v. Davison-Paxon Co., 80 Ga. App. 840 ( 57 S.E.2d 680).

Furthermore, the fact that she caught her toe on the jagged broken end of the terra cotta pipe is immaterial because, if the concrete covering obscured her view of the pipe, it must have extended beyond the open end of the pipe, and we think it is obvious from the facts alleged that she would have caught her toe on the concrete covering if not on the pipe. By the exercise of ordinary care she could have seen the concrete covering or the pipe, and she was bound to know that in placing her foot in such a position the toe of her shoe would likely be caught by the overhanging concrete if not by the pipe itself when she sought to raise her foot upon taking another step. She was negligent in so placing her foot, and this negligence amounted to the failure to exercise ordinary care for her own safety. Conceding that the defendant was negligent in the way and manner alleged, it is nevertheless apparent from the facts alleged in the petitions that such negligence was not the proximate cause of the plaintiff's injuries and damages, but that Mrs. Smith's failure to exercise ordinary care was the cause thereof.

The trial court erred in overruling the general demurrers and in not dismissing the petitions.

Judgment reversed. Nichols, P. J., and Jordan, J., concur.