Opinion
40883.
DECIDED JANUARY 5, 1965. REHEARING DENIED JANUARY 21, 1965.
Action for damages. Carroll Superior Court. Before Judge Knight.
Sanders, Mottola Haugen, Willis Ga. Haugen, Gilbert Head, Henry Head, for plaintiff in error.
Oscar W. Roberts, Jr., Reuben Word, contra.
The providing of the private walkway by the defendant in the present case, for the use of its invitees, such as the plaintiff, which walkway was in part about 5 feet above a loading ramp, was the equivalent of providing a walkway with an excavation immediately adjacent thereto. It is the duty of a landowner not to maintain on his premises an excavation in dangerous proximity to a private walkway used by the owner's invitees so that persons passing along such way may be injured if, while in the exercise of ordinary care, by necessity or accident, they slightly deviate from such way. Greenfield v. Watson, 54 Ga. App. 9 ( 187 S.E. 183); Wright v. Southern R. Co., 62 Ga. App. 316, 318 ( 7 S.E.2d 793); McMahen v. Nashville, Chattanooga c. R. Co., 68 Ga. App. 397, 401 ( 23 S.E.2d 81); Cox v. Greenfield, 50 Ga. App. 699 ( 179 S.E. 178). The petition sufficiently alleges the negligent breach of such duty on the part of the defendant and that such breach was the proximate cause of the injury and damage to plaintiff. The trial judge erred in sustaining the general demurrer to the petition.
Judgment reversed. Felton, C. J., and Frankum, J., concur.
DECIDED JANUARY 5, 1965 — REHEARING DENIED JANUARY 21, 1965.
Dr. Ben H. Jenkins brought an action against The Southwire Company, alleging in part as follows:
"That representatives of the Southwire Company requested your petitioner and Paul Horsch, the President of Franklin Aluminum Company, Inc., to meet with them on the evening of February 19, 1962, to discuss the details of a prospective sales contract wherein the Southwire Company would sell aluminum billets to the Franklin Aluminum Company, Inc.
"That on the evening of February 19, 1962, plaintiff and Paul Horsch arrived at the Southwire Company plant in Carroll County, Georgia at approximately seven o'clock p. m. and entered the offices of the Southwire Company through the main entrance to said offices customarily used by business visitors of the Southwire Company.
"Plaintiff shows that from approximately seven o'clock p. m. until approximately ten o'clock p. m., plaintiff and Paul Horsch, representing Franklin Aluminum Company, Inc., and Roy Richards and Roger Schoerner, representing The Southwire Company, discussed the details of the prospective sales contract for aluminum billets.
"Plaintiff shows that the main entrance to the offices of the Southwire Company, customarily used by business visitors of the Southwire Company, is located on the eastern side of one of the plant buildings. The customary approach to this entrance is to walk in a southerly direction through the plant yard and then continue for approximately two hundred fifty feet (250) in a southerly direction upon a paved walkway which lies immediately alongside the eastern side of the plant building wherein the offices are located. At the southern end of the paved walkway it is necessary to turn sharply to the right into a roofed-over entrance area and them to turn sharply to the right into a again to reach the entrance door. Plaintiff shows that the entrance door faces south.
"Plaintiff shows that the area immediately east of the plant building wherein the offices are located is a loading area for trucks; that this loading area is level from the northeast corner of the aforementioned building in a southerly direction for approximately one hundred (100) feet, and then said loading area slopes gradually to two truck doors in the plant building; that the paved walkway which runs immediately alongside the eastern wall of the office building is approximately twelve feet wide; that this walkway is approximately two hundred fifty (250) feet long and does not descend in a southerly direction with the normal contour of the aforementioned loading area, but remains perfectly level from the northeastern corner of the office building along the entire length of the walkway to the entrance into the office building; that said walkway and the loading area immediately east of the walkway are level with each other at the northeastern corner of the plant building but diverge at a point approximately one hundred (100) feet south of the northeast corner of said building, and at this point the loading area slopes gradually in a southerly direction while the walkway remains level.
"That at a point immediately east of the office entrance door, and across the twelve foot walkway, there is a sharp drop of approximately five feet from the walkway to the loading area.
"That at all times described in this petition there were no railings, barricades, or safety bars along the eastern edge of this paved walkway.
"That on the evening of February 19, 1962, plaintiff and Paul Horsch parked their automobile at the northern end of the office building and walked to the office of the Southwire Company through the northern end of the loading area, where the walkway and the loading area were completely level, and then on to and along the walkway to the office. Plaintiff shows that at this time the walkway, the loading area, and the office entrance were dark and that there were no lights illuminating these areas.
"Plaintiff further shows that in this darkness, and at this time, the gradual divergence in height between the loading area and the walkway, and the eventual five foot drop near the office entrance, could not be seen by a person walking through the northern end of the loading area, or by a person walking on to and along the walkway, and that the loading area appeared to remain completely level with the walkway throughout the entire two hundred fifty foot length of said walkway.
"That at approximately ten o'clock p. m., after concluding their business discussions with the officials of the Southwire Company, plaintiff and Paul Horsch left the office of Southwire Company. Plaintiff and Paul Horsch walked out the entrance door, turned left, and then walked out on to the walkway.
"That as plaintiff walked out on to the walkway, it was dark and there were no lights illuminating the walkway, the loading area, or the entrance to the office. Plaintiff further shows that at this time the five foot drop, and the divergence in height between the loading area and the walkway, could not be seen by a person standing on the walkway.
"That as plaintiff walked out on to the walkway, he walked to the edge of the walkway and stepped off the walkway and fell approximately five feet to the surface of the loading area.
"Plaintiff shows that he had no notice, knowledge, or warning of the existence of the drop from the driveway to the loading area, or that the entire area immediately east of the office building, both the walkway and the loading area, were not completely flat and level.
"That at all times herein mentioned the defendant, Southwire Company, owned the property and premises upon which plaintiff suffered the above described fall and resulting injuries.
"That at all times herein mentioned the defendant, Southwire Company, occupied the premises upon which plaintiff suffered the above described fall and resulting injuries, and conducted upon said premises a business of manufacturing wire, cable, and related products, and said premises were in the exclusive control and possession of the defendant Southwire Company.
"That at the time plaintiff suffered the above described fall and resulting injuries, plaintiff was an invitee of the defendant Southwire Company.
"That the plaintiff's fall and injuries resulted solely from the negligence of the defendant Southwire Company or its employees.
"That at the time of plaintiff's fall, the defendant Southwire Company or its employees knowingly allowed plaintiff to walk on the walkway without informing plaintiff of the dangerous drop from the driveway to the loading area or warning plaintiff about said drop.
"Plaintiff shows that Roy Richards and Roger Schoerner, officials of the Southwire Company, knew that plaintiff and Paul Horsch had entered the offices of the Southwire Company by walking along said walkway.
"That the defendant Southwire Company, or its employees knew of the dangerous character of the walkway, and of the adjacent loading area, but failed to provide safety devices for said area, or to have the premises safe for your petitioner, and for defendant's customers and others who had business in the Southwire office.
"That the defendant Southwire Company had made provisions for lighting the loading area, the walkway, and the entrance to the office, in that there were at least four flood light sockets installed in the area, but that the lights for these receptacles were broken, inoperative, and not turned on during the plaintiff's approach to and exit from the office. Plaintiff further shows that the defendant, or the defendant's employees, knew of the defective lighting facilities and that the aforementioned premises were not lighted at the time plaintiff was on defendant's premises.
"That at all times described herein when the plaintiff was upon the defendant's premises there were no objects on the walkway or the loading area adjacent to the walkway which might have provided notice of the existence of the five foot drop, nor were there any elements or objects or combinations thereof, which might have provided notice to your petitioner or any other individual of the existence of this hidden pitfall, or that the loading area and walkway were not completely level in all areas east of the office building. Plaintiff further shows that this pitfall could not have been discovered by ordinary examination.
"That at all times described herein plaintiff exercised ordinary care for his own safety but was unable to and did not see the five foot drop or the divergence in height between the loading area and the walkway.
"That the defendant Southwire Company was negligent in each of the following particulars, said negligence being the proximate cause of plaintiff's fall and resulting injuries: (a) In knowingly constructing as the main and customary approach to the defendant's office a walkway adjacent to the five foot drop to the loading area. (b) In knowingly maintaining as the major and customary approach to defendant's office a walkway adjacent to a five foot drop to a loading area. (c) In negligently failing to place and maintain a retaining wall, barricade, railing, or safety bar along the eastern edge of the walkway and adjacent to the main entrance to defendant's office. (d) In negligently maintaining the walkway, loading area, and entrance area without lighting, although knowing that business visitors such as the plaintiff would use said area. (e) In failing to warn plaintiff of the existence of the five foot drop from the walkway to the loading area, although knowing that the five foot drop was not visible to the plaintiff and that the plaintiff would traverse that walkway at the time plaintiff was injured. (f) In failing to inspect the lighting facilities for the entrance, the walkway and the loading area, to insure that adequate lighting would be available upon these areas, knowing that said areas would be traversed by defendant's business visitors and in particular that the walkway would be traversed by plaintiff at the time plaintiff was injured. (g) In knowingly maintaining in an area customarily used by defendant's business visitors, a mantrap, pitfall, and hidden peril. (h) In negligently failing to light the loading area, the walkway, and the entrance to defendant's offices, although knowing that the plaintiff was on the premises and would traverse the walkway, while knowing of the aforementioned dangerous and hidden pitfall lying immediately next to the entrance to the offices and the walkway."
The petition alleged that as a result of the fall the plaintiff suffered certain injuries and damages for which he sought recovery. A general demurrer to the petition was sustained by the trial judge and his ruling is before this court for review.