Opinion
38467.
DECIDED OCTOBER 10, 1960. REHEARING DENIED OCTOBER 26, 1960.
Tort; invitee injured in store. Fulton Superior Court. Before Judge Wood. May 2, 1960.
Smith, Kilpatrick, Cody, Rogers McClatchey, Wilbur Branch King, for plaintiff in error.
Samuel Green, Jr., contra.
1. In an action based on negligence, it is for the jury to determine whether the platform extending out into an aisle and upon which the plaintiff tripped should have been seen by the plaintiff in the exercise of ordinary care. The court did not err in overruling the defendant's general demurrers to the petition.
2. While negligence must be alleged specifically, the petition is not subject to special demurrer because it lacks minute particularity in averments of negligence, especially as to facts within the knowledge of the defendant.
DECIDED OCTOBER 10, 1960 — REHEARING DENIED OCTOBER 26, 1960.
Mrs. Odessa M. Stanley brought suit against Colonial Stores, Inc., for injuries sustained in one of its retail grocery stores alleging: that she went upon the defendant's property as an invitee for the purpose of purchasing food; that, as was the custom, she proceeded through the aisle selecting food; that she was in the area of the vegetable department; that she came up to a table about waist high, stopping for a moment and then saw sugar she wished to purchase; that, as stated in paragraph 7, "Petitioner started around the table to get to the sugar and in so doing, caught her left foot on a low platform, about four inches high which was on the floor at the end of the table and extending out into the aisle. That said platform could not be seen from the spot where petitioner had stopped by the table and petitioner had no notice that same was sticking out into the aisle"; that she tripped and fell sustaining stated injuries; that, as stated in paragraph 8, "said low platform was of the type used to stack sacks of potatoes on but that at the time petitioner tripped on same, it had nothing on it to call attention to its presence and that it could not have been seen unless petitioner had had her eyes glued to the floor"; that, as stated in paragraphs 11, 12 and 18, the injuries were the result of the defendant's negligence through its agents, servants and employees who knew, or in the exercise of ordinary care should have known, of the unsafe and dangerous hazard, and that the plaintiff at all times was in the exercise of ordinary care and diligence for her safety; that as a result of her injuries the plaintiff was damaged in stated amounts. To the petition the defendant filed a general and eight special demurrers which were all overruled by the court. To this ruling the defendant excepts.
1. The allegations contained in the petition set forth a cause of action against a general demurrer. "Under the facts here alleged, the jury could find that the carton in question was negligently placed so as to protrude into the aisle in such a manner as to threaten danger to customers whose attention was diverted from the floor by adjacent displays of merchandise. The court did not err in overruling the defendant's general demurrer to the amended petition." Big Apple Super Market v. Briggs, 102 Ga. App. 11, 15 ( 115 S.E.2d 385).
The cases relied on by the defendant have been thoroughly reviewed. In Tinley v. F. W. Woolworth Co., 70 Ga. App. 390, 393 ( 28 S.E.2d 322) it was stated that "there is no express allegation in the petition that the scales, or any part thereof, were concealed from the plaintiff's view." The instant petition is distinguishable in that it alleges that "said platform could not be seen from the spot where petitioner had stopped by the table." In Delay v. Rich's, Inc., 86 Ga. App. 30 ( 70 S.E.2d 546) the court pointed out that the petition did not allege that the footstool tripped over was not in use, and therefore it must be construed that the footstool was in use. The court concluded therefrom that the plaintiff's allegations admitted that it was the custom to have footstools in the aisle. The logic of the Delay case does not apply here for it was alleged that an empty platform about four inches high extended into the aisle and that petitioner had no notice that it was sticking out into the aisle, etc. The question whether the plaintiff might have discovered the article in the aisle by the exercise of ordinary care must be determined in the light of the attendant circumstances. Kitchens v. Davis, 96 Ga. App. 30 ( 99 S.E.2d 266).
It is clear that the placing of the platform loaded with potatoes in an aisle would not be the proximate cause of a customer's injury. However, leaving the low platform in an aisle when it became empty presents a jury question under the allegations of the petition. See Big Apple Super Market v. Briggs, 102 Ga. App. 11, supra.
2. The eight special demurrers directed to paragraphs 7, 8, 11, 12 and 18 are without merit for the pleadings are not so vague or indefinite as to be deficient in particularity. "In an action which is based upon the negligence of the defendant it is not sufficient to allege the negligence in general terms, when the defendant objects to such allegations by a special demurrer calling for the particulars of the negligence complained of. . . While under this rule negligence must be alleged in such a specific way as to put the defendant on notice of what it is to answer, still the rule is not to be carried to the extent of requiring minute particularity in the averments of negligence." Russell v. Central of Ga. Ry. Co., 119 Ga. 705, 707 (2) ( 46 S.E. 858). This is especially true when the facts called for by the special demurrers are as well known to the defendant as to the plaintiff; such as, in what aisle the platform was located at the time and place in question.
The court did not err in overruling the general and special demurrers.
Judgment affirmed. Nichols and Bell, JJ., concur.